U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

Hemp Industry Seeking Relief From CBD Enforcement

The hemp industry is not pleased with a recent ruling of the Ninth Circuit Court of Appeals. Industry proponents filed a challenge with the court to the DEA's final rule listing cannabinoids as a schedule 1 controlled substance.

Cannabinoids, or CBD, may sound similar to cannabis, but are actually rather different from the psychoactive ingredient found in marijuana, THC, or tetrahydrocannabinols. Although the medical marijuana industry has long since pushed for CBD extracts to be defined separately, particularly as there is no psychoactive effect and it has proven to be medically beneficial, the federal government still lumps these in with drugs like heroin and LSD.

Too Late, Too Bad

Unfortunately for the Hemp Industry Association, who led the litigation, the court ruled that they failed to comment during the commenting period, and thus were prevented from challenging the final rule in court due to waiver. Though the association relied on a private citizen's comment, the court found that the association's challenge was actually rather different than the cited comment, and that the DEA actually revised their wording in order to clarify the concerns raised by the private citizen's comment.

Additionally, the association's argument that the final rule violated the Agriculture Act of 2014 and the Consolidated Appropriations Act of 2016, though not waived, were not persuasive to the court.

Notably, it is projected that the CBD market will reach $1.8 billion by 2020, and that hemp derived CBD may make up nearly a quarter of that market.

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