4610 Arville Street, Suite C
Las Vegas, Nevada 89103-5343
August 20, 2018
To whom it may concern:
This letter is written to explain why we at PharmaXtracts legally sell and ship our cannabidiol (CBD) products to customers in every state and territory. First some definitions and background.
The difference between marijuana and hemp:
Over one hundred cannabinoids are found in the cannabis plant. The best known cannabinoid is Delta-9 tetrahydrocannabinol (Delta-9 THC). Delta-9 THC is the only cannabinoid in cannabis that produces a psychotropic, euphoric high.
When smoked or otherwise ingested, cannabis with a THC level sufficient to produce a euphoric high is called marijuana. Cannabis with a THC level too low to produce a euphoric high is called hemp. Hemp fiber can be made into rope, fabric, and paper, and hemp seeds are 31 percent protein and contain a nutritious oil filled with omega-3 fatty acids.
Although smoking hemp with a THC level below 2 or 3 percent is not likely to get one high, the United States Congress played it safe, and “industrial hemp” was federally defined as any part of the cannabis sativa L. plant with a Delta-9 THC content not exceeding 0.3 percent by dry weight. It is presently legal to grow industrial hemp in 40 states that have established pilot programs pursuant to the Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014 (sometimes referred to as the “2014 Farm Bill” or simply “Farm Bill”).
The second most common cannabinoid found in cannabis is CBD which is nontoxic, nonaddictive, not psychotropic, and produces no euphoric high. In fact, CBD acts as a partial antidote to bring a person back to normal when they are experiencing a psychotropic, euphoric high from consuming THC by smoking marijuana or otherwise ingesting it. PharmaXtracts’ CBD is extracted from industrial hemp as is almost all CBD sold in America.
Hemp high in CBD has been used as a medicine since ancient times.
Hemp has been accepted for its medical uses since ancient times. Only since the 1850's has marijuana high in THC been promoted for its medical uses. Historically, cannabis based medical remedies have been made from hemp high in CBD.
In the 1750's, Swiss botanist Carl Linnaeus invented the method scientists use to classify plants and animals. Linnaeus assigned the name “cannabis sativa” to hemp plants grown in Europe for their fiber and seed. Cannabis sativa is usually high in CBD and low in THC. Cannabis grown for fiber and seed remains classified as cannabis sativa L.
In the 1780's, French naturalist Jean-Baptiste Lamarck developed the theory of inheritance of acquired characteristics. Lamarck was the first to classify psychoactive varieties of cannabis grown in India as “cannabis indica.” Cannabis indica, named after India, is high in THC and low in CBD and is historically grown in India for its psychotropic, euphoric properties. In India, recreational marijuana, called "ganja," has been grown to perfection since 2000 BCE. Cannabis indica does not grow as tall as cannabis sativa and has thicker stalks, and its side stalks spread out further requiring more room between plants. Cannabis indica is not a good species of cannabis from which to harvest fibers or from which to extract CBD.
Today, the distinction between cannabis sativa and cannabis indica is not as great as it once use to be. Medical marijuana dispensaries sell cannabis sativa strains high in THC, and there are a number of cannabis sativa-indica hybrids.
Hemp is one of the first plants cultivated by man. Its use dates from the Neolithic Age in China, and its leaves have been pictured on Chinese pottery dating from 5000 BCE. In 2737 BCE, Legendary Chinese Emperor Shen-Nung wrote of the medical benefits of cannabis in an Assyrian tablet, and traditional Chinese medicine lists cannabis as one of the “50 fundamental herbs."
Egyptologists believe the Ebers Papyrus dates from 1550 BCE, and its writings prescribe cannabis to ease inflammation. Examination of Egyptian mummies has revealed the use of hemp suppositories to relieve hemorrhoidal pain.
In 1000 BCE, cannabis mixed with milk, called "bhang," was used in India as an anesthetic and as an anti-phlegmatic to help respiration.
In 200 BCE, cannabis was used in Greece to treat earaches, edema (water retention), and inflammation.
By 800 ADE, cannabis was used in Arabic countries to treat migraine headaches and as an anagesic and anaesthetic.
In 1538, the first English botanist and famous herbalist William Turner praised cannabis in his book New Herball. Turner considered cannabis an essential ingredient in any herbalist's medicine cabinet.
In 1578, famous Ming dynasty physician, scientist, pharmacologist, and herbalist Li Shizhen authored the Chinese medical text Bencao Gangmu Materia Meicap which prescribes cannabis to treat vomiting, parasitic infections, and hemorrhaging.
In 1850, the United States Pharmacopeia journal listed cannabis for treating dysentery, opiate addiction, and incontinence, and marijuana tinctures began to be patented, some of which had extracts made from cannabis indica.
In 1889, Canadian physician Sir William Osler became one of the four professors who founded Johns Hopkins Hospital. Osler has been called the “Father of Modern Medicine” for developing the residency training program. Osler promoted the medical use of cannabis believing it was an effective treatment for migraine headaches.
In 1889, The Lancet, still one of the leading medical publications, published an article by Dr. E.A. Birch recommending cannabis be used for treating opium withdrawal symptoms and stating cannabis acted as an anti-nausea medication.
In the United States from the early 1800's to the mid-1930's, there were a number of cannabis based medical remedies sold over the counter in drug and general stores. Many of these remedies mixed hemp oil with alcohol; some added opium or morphine until those narcotics were outlawed in 1914 by passage of the Harrison Act. All cannabis based medical remedies were available without a prescription, and they were advertised to cure restlessness, spasmodic pains, nausea, coughs, and a variety of other ailments. In 1906, the passage of the Pure Food and Drugs Act required medicines containing cannabis list the quantity or proportion of cannabis contained therein.
By the 1930's, two major pharmaceutical companies still in existence, Parke-Davis (now as subsidiary of Pfizer) and Eli Lily, sold extracts of cannabis to treat a number of medical conditions.
In 1999, CBD’s anti-oxidant, anti-inflammatory, and neuroprotectant properties were cited by the United States Department of Health and Human Services in its patent application for synthetic CBD. See USPTO US6,630,507. After receiving its patent, the government conducted no clinical trials and made no attempt to bring CBD to market. Critics allege the government’s purpose behind patenting synthetic CBD was to discourage CBD research as a favor to big pharmaceutical companies. For years pharmaceutical company executives have “retired” and gone to work for the Department of Health and Human Services and its Food and Drug Administration while still benefiting from stock options, the values of which would depend on how well government policies favored their former drug companies. CBD extracted from hemp cannot be patented because it is a natural substance. The government’s synthetic CBD patent expires on April 21, 2019.
The United States Food and Drug Administration does not allow CBD to be advertised as a drug or as a dietary supplement. As a result, PharmaXtracts markets its CBD tinctures and other CBD products as a food meant for oral consumption.
How CBD works and what it does:
For 80 years beginning with passage of the Marihuana Tax Act of 1937, the United States government suppressed all domestic research into the medical benefits of cannabis. As a result, we know far less than we should about how cannabis remedies work. What we have discovered is that all mammals have an endogenous cannabinoids system, most often called the “endocannabinoid system.” The human body’s endocannabinoid system produces some of the same cannabinoids found in cannabis.
The endocannabinoid system is one of the body’s most crucial physiological systems. It produces enzymes that create and destroy endocannabinoids (cannabinoids made within the body) and has a series of receptor sites to receive those endocannabinoids creating a communications network the body uses to regulate many of its biological responses, especially the functions of its immune system. A well functioning endocannabinoid system is essential to a well functioning immune system and maintaining good health.
Endocannabinoids produced and released by the endocannabinoid system link with endogenous cannabinoid receptors found throughout the body setting neurons into action triggering a series of cellular responses and affecting the duration and intensity of physiological processes by impeding the flow of information through the presynaptic cells thereby controlling the intensity of the signals being communicated.
When an injury or disease assaults the body, it upsets what would otherwise be a relatively stable equilibrium, called homeostasis. By releasing various endocannabinoids in response to injury or disease, the endocannabinoid system triggers receptors to modulate the body’s other systems seeking a return to homeostasis. Once homeostasis returns and equilibrium is established in any one affected area and the endocannabinoids are no longer needed, the endocannabinoid system sends out metabolic enzymes to breakdown and degrade the endocannabinoids. Important parts of the body’s immune system are thereby regulated. Physically, the endocannabinoid system affects muscle control, metabolism, cell function, and inflammation. Involuntarily, the endocannabinoid system affects appetite, pain, pleasure, and sleeping patterns. Mentally, the endocannabinoid system affects memory and mood.
When the assault is chronic, the endocannabinoid system becomes stressed causing it to under treat or over treat a condition. An example of over treating a condition would be when too many white blood cells accumulate in one area causing damaging levels of painful inflammation, and the overabundant white blood cells begin attacking healthy tissues. Chronic conditions can assault all physiological systems affected by the endocannabinoid system from muscle control to mood control.
CBD primarily interacts with one of the endocannabinoid systems’ receptors and helps the body’s endocannabinoid system function properly. The chemistry explaining how CBD aids the body’s immune system is not completely understood, but evidence CBD has medical benefits is supported by thousands of patient reports. Such testimonials are only antidotal evidence. The data has not been subjected to the scrutiny of clinical trails satisfying all scientific protocols, such as using a carefully selected group of people suffering from the same ailment and then subjecting them to a double blind study where the person distributing the drug does not know if they are giving the patent the drug being tested or a placebo. The reported results then need to reliably measure whether the medical condition was successfully treated, something not easily measured for subjective complaints like pain and anxiety. Clinical trials must prove a drug treats a specific disease before the Food and Drug Administration will consider licensing the drug to treat that disease. The FDA is hostile toward natural remedies that are not perfectly consistent.
CBD extracted from industrial hemp now falls outside the Department of Justice's Drug Enforcement Administration's and the FDA’s ability to regulate so long as it is not advertised as a drug. This freedom to market industrial hemp products partially compensates the public for the government suppressing cannabis medical research for 80 years and the unlawful, discriminatory history behind the government’s criminalization of cannabis. It also recognizes how safe it is to ingest CBD and CBD’s many benefits.
CBD is nontoxic.
Cannabis, especially CBD extracted from industrial hemp, is the safest substance used to treat medical conditions. Cannabis based medical remedies have been used for over 5000 years, and no deaths or injuries have been reported from consuming too much cannabis from which CBD is extracted. CBD is nontoxic and has been taken in quantities up to 1500 milligrams per day by human subjects in controlled studies without ill effect. See Bergamaschi MM1, Queiroz RH, Zuardi AW, Crippa JA., “Safety and side effects of cannabidiol, a Cannabis sativa constituent,” Curr Drug Saf. 2011 Sept 1; 6(4): 237-49.
In a 1988 ruling, DEA Administrative Law Judge Francis L. Young found as a matter of fact,
“Nearly all medicines have toxic, potentially lethal effects. But marijuana is not such a substance. There is no record in the extensive medical literature describing a proven, documented cannabis-induced fatality.
“This is a remarkable statement. First, the record on marijuana encompasses 5,000 years of human experience. Second, marijuana is now used daily by enormous numbers of people throughout the world. Estimates suggest that from twenty million to fifty million Americans routinely, albeit illegally, smoke marijuana without the benefit of direct medical supervision. Yet, despite this long history of use and the extraordinarily high numbers of social smokers, there are simply no credible medical reports to suggest that consuming marijuana has caused a single death.
“By contrast aspirin, a commonly used, over-the-counter medicine, causes hundreds of deaths each year.
“Drugs used in medicine are routinely given what is called an LD-50. The LD-50 rating indicates at what dosage fifty percent of test animals receiving a drug will die as a result of drug induced toxicity. A number of researchers have attempted to determine marijuana's LD-50 rating in test animals, without success. Simply stated, researchers have been unable to give animals enough marijuana to induce death.
“At present it is estimated that marijuana's LD-50 is around 1:20,000 or 1:40,000. In layman terms this means that in order to induce death a marijuana smoker would have to consume 20,000 to 40,000 times as much marijuana as is contained in one marijuana cigarette. NIDA-supplied marijuana cigarettes weigh approximately .9 grams. A smoker would theoretically have to consume nearly 1,500 pounds of marijuana within about fifteen minutes to induce a lethal response.
“In practical terms, marijuana cannot induce a lethal response as a result of drug-related toxicity.”
See J. Young, In the Matter of Marijuana Rescheduling Petition, Docket No. 86-22, Opinion and Recommended Ruling, Findings of Fact, Conclusions of Law and Decision of Administrative Law Judge, Sept. 6, 1988, http://medicalcannabisreport.com/wp-content/uploads/2015/05/FLYoungDEARuling1988.pdf
CBD has an FDA accepted medical use.
Clinical studies have supported incorporating CBD into a prescription designed to manage seizures. In April 2016, GW Pharma, an English company where the laws gave it a head start testing THC and CBD based drugs, had its drug Epidiolex unanimously approved by a 13-member Peripheral and Central Nervous System Drugs Advisory Committee, an expert panel that ruled Epidiolex safe and efficacious for treating seizures in patients two years and older suffering from Lennox-Gastaut and Dravet syndromes, referred to Epidiolex as a “Cannabidiol Oral Solution," and set Epidiolex up to be the first CBD containing drug approved by the FDA.
On June 25, 2018, the U.S. Food and Drug Administration announced it had approved Epidiolex (cannabidiol) oral solution for the treatment of “seizures associated with two rare and severe forms of epilepsy, Lennox-Gastaut syndrome and Dravet syndrome, in patients two years of age and older.”
CBD’s beneficial effect on seizure patents has been known to the CBD community for five years since a child with epileptic seizures, Charlotte Figi, had her case discussed in a CNN documentary entitled "Weed." This documentary aired video footage of Charlotte Figi’s seizures being controlled by her taking CBD and helped shift public attitudes toward the beneficial effects of cannabis-based medical remedies.
Since passage of the Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014, no prescription has been needed to purchase CBD because the law takes it out of the Drug Enforcement Agency’s ability to control, but now that Epidiolex has received FDA approval, it can be prescribed by a doctor, and the price of the prescription can be covered by insurance.
Discovering the endocannabinoid system first required the ability to isolate certain cannabinoids.
In 1895, British researchers T. Barlow Wood, W.T. Newton Spivey, and Thomas Hill Easterfield at the University of Cambridge isolated and identified cannabinol (CBN) in its pure form, but CBN’s chemical structure was not discovered until British chemist Robert Sidney Cahn, a fellow at the Royal Institute of Chemistry, did so in the early 1930's.
In 1940, American organic chemist Dr. Roger Adams and a team of scientists at the University of Illinois discovered and were the first to extract CBD from cannabis, but they were not able to describe its chemical structure.
In 1964, Israeli scientist Raphael Mechoulam identified and isolated THC and was able to describe its chemical formula. How THC affected the brain remained unknown until 1988 when the first cannabinoid receptor, CB1, was discovered by Allyn Howlett and William Devane working with a team of scientists at the St. Louis University Medical School. In August 1990, Lisa Matsuda working with a team at the National Institute of Mental Health announced they had identified a THC-sensitive receptor in rat brains.
The discovery of the endocannabinoid system led to a resurgence in cannabis based medical research, especially in Europe and the Middle East. Ironically, the research at the St. Louis University Medical School that led to the discovery of the endocannabinoid system had been authorized by the Department of Health and Human Services because the government was seeking evidence supporting the criminalization of marijuana and supporting a series of advertisements produced by the Partnership for a Drug-Free America. The advertisements began being aired in 1987 and were peddled as public service announcements. They showed an egg frying on a pan with an actor or voice over saying, “This is your brain on drugs, any questions?” TV Guide listed this advertisement as being one of the 100 most effective of all time.
We now know all mammals as part of their immune system have an endocannabinoid system that helps modulate and regulate their other physiological systems keeping them in equilibrium. Humans and other mammals produce cannabinoids internally through their endocannabinoid system. We always have a bit of cannabis within us, and those endocannabinoids are as critical to sustaining our lives as is salt.
Endocannabinoids are neurotransmitters that bind to cannabinoid receptors and cannabinoid receptor proteins found throughout the brain, central nervous system, peripheral nervous system, organs, connective tissues, glands, and white blood cells depending on the type of receptor. The endocannabinoid system helps regulate a wide variety of physiological and cognitive processes. Endocannabinoid levels rise in response to various medical assaults and disorders, such as anxiety, inflammation, and pain.
CB1 and CB2 have been identified as the two primary endocannabinoid receptors. There may be other endocannabinoid receptors yet to be discovered. THC and its primary metabolite attach to CB1 receptors. The CB1 receptors in the brain play a role in maintaining normal brain activity and protecting against seizures. CBN attaches to CB2 receptors. CBD shares much of the same chemical structure as CBN allowing CBD to loosely attach to CB2 receptors. CBD does not attach to CB1 receptors in the brain but, instead, disrupts endocannabinoid attachments to the CB1 receptors.
CB1 receptors are predominately found on nerve cells in the brain and central nervous system. Stimulation of the CB1 receptors in the brain produces a euphoric high and can increase circulation. CB2 receptors are predominately found on the peripheral nerves, organs, connective tissues, glands, and blood cells. CBD will loosely attach to white blood cells through a CB2 receptor and be transported to the site of inflammation. The theory is CBD treats inflammation by disrupting the buildup of white blood cells and by causing a release of other immune system chemicals.
CBD attaching to CB2 receptors in the liver explains why CBD serves as an antidote for marijuana users who are high from consuming Delta-9 THC.
For Delta-9 THC to get one high, it must be metabolized by the liver and turned into 11-Hydroxy-Δ9-tetrahydrocannabinol (11-OH-THC) which is the primary metabolite of THC. The 11-OH-THC binding to CB1 receptors in the brain is what produces a euphoric high. When the 11-OH-THC is fully metabolized by the liver and becomes 11-nor-9-carboxy-delta-9- tetrahydrocannabinol (11-THC-COOH), the main secondary metabolite of THC, the euphoric high ends, and the person is no longer under the influence of marijuana. CBD attaching to CB2 receptors in the liver acts to slow down the liver’s metabolizing Delta-9 THC into 11-OH-THC and, therefore, helps bring a person down from a Delta-9 THC induced high by causing the liver to metabolize the Delta-9 THC into 11-OH-THC at a slower rate over a longer period of time.
Ironically, most states test for 11-THC-COOH to determine if someone is under the influence of marijuana. 11-THC-COOH remains in a person's bloodstream long after they are no longer under the influence and after the Delta-9 THC once in their system is no longer being metabolized into 11-OH-THC. If the question sought to be answered is whether a person was high at work or at the time of an accident or when driving a car, the accurate and only fair procedure would be to test for 11-OH-THC which is only present when a person is under the influence.
Neither THC, CBD, nor any other cannabinoid identified as being present in cannabis affect those regions of the brain that control the body’s heart and lung functions. This accounts for there being no recorded fatal overdoses as a result of ingesting cannabis.
Intercellular communications through the endocannabinoid system result in the release of cytokines, a broad category of small proteins important in cell signaling that when released affect the behavior of cells around them. Two cytokines are interleukin and interferon; they help regulate the immune system's response to inflammation and infection. The endocannabinoid system also results in the release of glutamate, an excitatory α-amino acid that works as a neurotransmitter; anandamide, a fatty acid neurotransmitter responsible for anti-inflammatory effects; and, adenosine, a neurotransmitter responsible for energy creation and sleep regulation.
CBD acts on the serotonin receptors. Serotonin is a compound found in the blood’s platelets and serum that controls the constriction of the blood vessels and acts as a neurotransmitter. CBD’s interaction with serotonin receptors decreases anxiety and protects brain cells. This neuroprotectant property is referenced by the Department of Health and Human Services in its synthetic CBD patent application which says CBD anti-oxidant properties have been shown to protect the brain from damage by relieving oxidative stress and by decreasing brain inflammation. Serotonin levels regulate one’s mood. Failure of the serotonin levels to be in equilibrium can result in depression.
CBD also affects calcium levels within the cells by acting upon a group of ion channels located mostly on the plasma cell membranes referred to as the transient receptor potential channels.
Marijuana was made illegal for prejudicial and false reasons.
The Marihuana Tax Act of 1937 was passed without any valid scientific basis and as a result of racist actions by two men, Harry J. Anslinger, the first Commissioner of the Federal Bureau of Narcotics, and William Randolph Hearst, the famous yellow journalist newspaper baron.
At first Anslinger found nothing wrong with marijuana and said cannabis was “no problem,” caused “no harm,” and with respect to reports cannabis caused people to become violent, said,“there is no more absurd fallacy.” Later, following his appointment as first Commissioner of the Federal Bureau of Narcotics and in an insatiable quest to increase his power and influence, Anslinger began touring the various states spreading an anti-marijuana message laced with racism and deceit. Anslinger lobbied for each state to pass without amendment the Uniform State Narcotic Drug Act which Hearst’s newspapers strongly endorsed.
Anslinger especially hated the black jazz culture and claimed, “Reefer makes darkies think they’re as good as white men . . . the primary reason to outlaw marijuana is its effect on the degenerate races,” and, “You smoke a joint and you’re likely to kill your brother.” Anslinger claimed marijuana caused temporary insanity and caused white woman to engage in interracial relationships. Anslinger misspelled marijuana “marihuana” as a means of convincing people the word “marihuana” had its origins in the word “mallihuan,” the Aztec word for “prisoner,” because it fit well with his narrative that marijuana enslaved its user when, in actuality, the origin of the word marijuana remains unknown. The first recorded use of the word “marijuana” was during the Mexican Revolution between 1910 and 1920. Mexican farmhands who immigrated to America during that time brought marijuana with them and smoked it after work.
Almost 900,000 Mexicans legally immigrated into the United States to escape the carnage of the Mexican Revolution. Many were hired to work at large farms in California. The small farmers blamed the use of cheap Mexican labor for putting them at an economic disadvantage, and this blame turned into hate, hate into bigotry, and bigotry into retaliation. The small farmers began to describe the Mexicans’ use of marijuana as an inherent evil hoping to cause widespread public prejudice forcing them to return to Mexico. Californians were also taken aback by the large influx of Hindoos immigrating to California from India who brought with them cannabis indica. In 1913, California became the first state to make possession of “narcotic preparations of hemp, or loco-weed” a misdemeanor. Also motivated by anti-Mexican bigotry, the City of El Paso outlawed cannabis in 1915 initiating the deportation of hundreds of Mexican immigrants.
Simply having states adopt the Uniform State Narcotic Drug Act was insufficient reward for Anslinger, who saw his personal importance and influence diminish after prohibition ended in 1933, and alcohol once again became legal on a national level. As problems associated with opium, morphine, and heroin addictions remained fairly insignificant, Anslinger turned his attention to crusading against marijuana seeking it be banned nationally in order to maintain his power and expand the size and budget of the Bureau he controlled.
As for Hearst, he hated blacks, Chinese, Hindoos, and especially Mexicans after Pancho Villa and his marijuana-smoking, rag-tag band of fugitive bandits expropriated 800,000 acres of valuable timberland Hearst owned in Chihuahua, Mexico, and turned it over to the Mexican peasants in 1898, a dozen years before the Mexican Revolution.
To rant against marijuana and exploit prejudice against blacks, Hearst’s San Francisco Examiner editorialized, “Marihuana influences Negroes to look at white people in the eye, step on white men’s shadows and look at a white woman twice,” and truth was not an issue when the San Francisco Examiner reported, “Hasheesh makes a murderer who kills for the love of killing out of the mildest mannered man who ever laughed at the idea that any habit could ever get him. . .”
Hearst’s newspapers often referred to Victor Licata, a mulatto who Hearst and Anslinger claimed murdered his family with an ax while they were asleep because he was under the influence of marijuana when, in actuality, marijuana was not discussed in any of Licata's psychiatric reports and was not considered a factor in the killings. A year before the killings, Licata had been diagnosed as mentally ill, and he was in the process of being committed. Eleven days after the killings, Licata was declared insane and unfit to stand trial after being diagnosed with "dementia praecox with homicidal tendencies" which would now be considered schizophrenia.
Before Anslinger was appointed Commissioner of the Federal Bureau of Narcotics, one of the later drafts of the Uniform State Narcotic Drug Act authored by the National Conference of Commissioners on Uniform State Laws removed cannabis from being defined as a “habit forming drug,” but after Anslinger was appointed Commissioner and began espousing his biased, unscientific, racist disinformation, the fifth and final draft of the State Narcotic Drug Act added cannabis to the category of “narcotic drugs” alongside opiates and cocaine. By the time the fifth draft was completed, no one challenged the list of prohibited substances even though no scientific study supported classifying marijuana a habit forming drug.
Prior to the passage of the Marihuana Tax Act of 1937, Anslinger’s Bureau of Narcotics played a role in making the 1936 anti-marijuana, propaganda film Reefer Madness, which depicted marijuana as a means by which all reason was lost and sinister men seduced innocent women. When the Marihuana Tax Act of 1937 was being considered, Anslinger made sure House Ways and Means Committee members saw Reefer Madness, and he told them about Victor Licata murdering his entire family with an ax claiming Licata was known by the police to have been a sane, rather quiet man, as Anslinger blamed marijuana for turning Licata into an insane murderer.
Anslinger sought to hide the purpose of the congressional hearings by not using the word “cannabis” to describe the subject matter before the committee but, instead, by using the word “marihuana.” Most members of Congress were unfamiliar with the meaning of the word marihuana as it not in common usage at the time. They were familiar with the word cannabis, and they knew hemp was grown as a crop for fiber, but they were not familiar with the term “marihuana.” Representatives of the hemp industry were also unaware of the term and, as a result, no industry representative attended the hearing. Anslinger controlled the information presented to the House committee members, subjected them to all the phony horror stories, many of which were introduced as Hearst newspaper clippings, and successfully convinced the committee members the American Medical Association favored passage of the Marihuana Tax Act which was not the case.
After learning of the hearing, Dr. William C. Woodward of the Legislative Council of the American Medical Association, who had previously spoken out against Anslinger’s distortion of earlier AMA statements, objected to cannabis being called marihuana in the legislation because the term marihuana was unknown to many of the legislators and, further, Woodward pointed out, since he was neither invited to attend nor notified of the congressional hearing, “the facts on which these statements [about cannabis] have been based have not been brought before this committee by competent primary evidence.” Most members of the committee failed to attend the second day of the hearing and were not present when Woodward testified.
The Reefer Madness movie, the Victor Licata story, the years of Hearst newspaper propaganda, the racist mood of the country following the 1920's when up to 50,000 Ku Klux Klan members in full regalia would march on Washington, D.C., the misrepresentation of the position taken by the American Medical Association, and Anslinger’s strong recommendation resulted in the Marihuana Tax Act of 1937 being passed out of committee and then passed by the House and Senate by a voice vote with little consideration or understanding of the significance of their vote.
The national marijuana tax was never designed to raise revenue. It was designed to end the trade in cannabis. Importers, manufacturers, and compounders of marijuana were only required to pay a yearly tax of $24 per year, but selling any marijuana to a person who had not also paid the yearly tax would result in a tax of $100 per ounce of marijuana, $1,760.89 in today’s dollars, and detailed sales logs needed to be constantly maintained. The Act’s “Regulation No. 1" allowed for constant inspection by the Treasury Department of any transaction, and to comply with the Act, one needed to circumvent a confusing set of regulations requiring the taking of depositions and the filing of affidavits and sworn statements. Any person convicted of a single violation of the Marihuana Tax Act could be fined $2,000 ($35,217.31 in today’s dollars) and imprisoned for five years. As a result, after passage of the Marihuana Tax Act of 1937, doctors, physicians, and scientists feared to experiment with hemp-related preparations.
In 1969, the United States Supreme Court in Leary v. United States, 395 U.S. 6 (1969), unanimous declared the Marihuana Tax Act of 1937 unconstitutional because to pay the tax one needed to admit to possessing marijuana. The case involved drug activist Timothy Leary who had small amounts of marijuana found in his car when he attempted to drive from Mexico into Texas. Possessing marijuana in Texas was illegal. To declare he was possessing marijuana in order to pay the federal tax, Leary would have needed to admit possessing marijuana in Texas, and the Supreme Court found this violated Leary’s Fifth Amendment right by compelling him to incriminate himself in a criminal case.
Following the Supreme Court’s decision in Leary v. United States, marijuana was temporally legal on the federal level, but not for long after Richard Nixon was elected President in November, 1968. Nixon placed Attorney General John N. Mitchell in charge of developing a comprehensive bill to deal with the “drug problem.” Then, for purely political reasons and making the same arguments made by Anslinger and the Hearst newspapers, including their racial stereotypes, in 1970, Nixon pushed for passage of the Controlled Substances Act, and lobbied marijuana be classified a Schedule I drug. Classifications were determined for five schedules of drugs, and what schedule the drug would be placed in was determined by the Drug Enforcement Administration and the Food and Drug Administration.
Nixon ignored the findings of the Shafer Commission he appointed to study the marijuana issue because it found, “The actual and potential harm of use of [marijuana] is not great enough to justify intrusion by the criminal law into private behavior, a step which our society takes only with the greatest reluctance.”
Classifying marijuana a Schedule I drug had the effect of again stifling all research into cannabis’s medical properties by first requiring FDA approval which was only given to researchers looking for evidence cannabis was dangerous, had no medical use, and should remain a Schedule I drug. Under federal law, the cannabis used in any research had to be provided by the University of Mississippi which since 1969 has been the only source authorized by the FDA to grow cannabis for research purposes.
At the time, outlawing cannabis had nothing to do with suppressing medical marijuana or CBD to please big drug companies. It had everything to do with retaliating against groups opposed to President Nixon and his policies. In 1994, Nixon’s Assistant to the President for Domestic Affairs John Ehrlichman admitted to Harper’s Magazine reporter Dan Baum,
“You want to know what this [war on drugs] was really all about? The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.” See https://harpers.org/archive/2016/04/legalize-it-all/.
Nixon can be heard saying on one of the White House tapes discovered as a result of the Watergate hearings, “I want a Goddamn strong statement on marijuana, I mean one that just tears the ass out of them. You know, it’s a funny thing, every one of the bastards that are out for legalizing marijuana is Jewish.” See http://www.csdp.org/research/nixonpot.txt.
In sum, cannabis was condemned, stigmatized, and banned for prejudicial and political reasons having nothing to do with science.
Marijuana should not be a Schedule I drug.
The Drug Enforcement Administration has kept marijuana in Schedule I in direct opposition to a 1988 finding made by DEA Administration Law Judge Francis Young who wrote,
"The evidence in this record clearly shows that marijuana has been accepted as capable of relieving the distress of great numbers of very ill people and doing so with safety under medical supervision. It would be unreasonable, arbitrary and capricious for the Drug Enforcement Administration to continue to stand between those sufferers and the benefits of this substance in light of the evidence.
* * * *
"Marijuana, in its natural form, is one of the safest therapeutically active substances known. In strict medical terms, marijuana is safer than many foods we commonly consume.” See US Department of Justice, Drug Enforcement Administration, “In the Matter of Marijuana Rescheduling Petition,” [Docket #86-22], (September 6, 1988), p. 57, http://medicalcannabisreport.com/wp-content/uploads/2015/05/FLYoungDEARuling1988.pdf.
Judge Young then recommended the DEA allow marijuana be prescribed as medicine. The DEA ignored the judge’s recommendation because it had a different agenda. Its excuse was that the chemical makeup of marijuana is not consistent.
In 2014, Congress moved to legalize CBD nationwide because the overwhelming majority of Americans believe marijuana should be legalized, especially for medical purposes.
Over the last fifty years Gallop has polled the American public measuring their acceptance of legalizing marijuana. In 1970, only 12 percent of the American public supported legalizing marijuana. Forty-six years later, a Gallop poll released October 25, 2016, reported 64 percent of American adults support legalizing marijuana, and that is not just using marijuana for medical purposes, that is for all purposes. A more recent Gallop poll of 1,082 American adults released August 11, 2017, also found 64 percent of American adults favor legalizing marijuana. The Gallop polls have a 4 percent margin of error at the 95 percent confidence level.
If the poll question is limited to whether a person should be able to use medical marijuana if prescribed by their physician (which the FDA does not presently allow), then according to a Quinnipiac University poll of 1,062 American voters from across the country released April 18, 2017, six months prior to the latest Gallop poll, an incredibly high 94 percent of voting Americans believe a person should be able to use medical marijuana if prescribed by their physician. A Yahoo/Marist pole released a day earlier had the figure at 83 percent. The Quinnipiac University Poll was taken of Americans who said they planned to vote and has a 3 percent margin of error. The Yahoo/Marist pole was taken from whomever answered the phone and has a 4.1 margin of error. Regardless of which poll is more representative, a greater percentage of American voters now approve of medical marijuana than have agreed on any other political issue since scientific opinion polls began being taken in the 1940's.
The same Quinnipiac University poll found 60 percent of all American voters believe “the use of marijuana should be made legal in the U.S.,” while only 34 percent of those polled disagreed, and 6 percent remained undecided. Seventy-three percent of those polled believe the federal government should not enforce the federal marijuana law in states where medical and/or recreational marijuana has been legalized.
A CBS New poll of 1011 American adults conducted from April 15 to April 17, 2017, found 61 percent of American adults favor legalizing marijuana for all purposes, and 88 percent favor the legalization of medical marijuana. Seventy-one percent oppose the federal government enforcing the federal marijuana law in states where marijuana has been legalized.
A Pew Research Center poll of 1504 American adults conducted from October 25 to October 30, 2017, found 61 percent of American adults favor legalizing marijuana for all purposes.
An NBC/Wall Street Journal poll of 900 American adults conducted from January 13 to January 17, 2018, found 60 percent of American adults favor legalizing marijuana for all purposes. The NBC/Wall Street Journal poll has a 3.3 percent margin of error.
A Fox News poll of 1002 registered voters conducted from January 21 to January 23, 2018, found 59 percent of registered voters favor legalizing marijuana for all purposes.
Taking the average of the seven polls conducted from October 25, 2016, to January 23, 2018, shows on average of 61.29 percent of Americans and American voters believe marijuana should be legalized for all purposes. Taking the average of the three polls that also inquired about medical marijuana, an average of 88.3 percent of Americans and American voters believe marijuana should be legalized for medical purposes.
Even when the polling is sponsored by people strongly opposed to the legalization of marijuana, the results remain about the same. Smart Approaches to Marijuana (SAM) has a history of lobbying against marijuana legalization and has been described by Vox as “the country’s most prominent anti-legalization group.” When SAM paid Mason-Dixon to conduct a poll of 1,000 registered voters containing several alternatives to the complete legalization of marijuana, SAM was seeking evidence the public really did not want marijuana legalized if given other alternatives.
SAM’s Mason-Dixon poll released January 13, 2018, asked which statement “best describes your preference on national marijuana policy – keep the current policy – keep the current policy, but legalize the use of marijuana for physician-supervised medical use – decriminalize marijuana use by removing the possibility of jail time for possession and also allowing for medical marijuana, but keep the sale of marijuana illegal – legalize the commercial production, use and sale of marijuana for recreational use, as they have done recently in several states.”
One percent of SAM's Mason-Dixon poll's respondents were unsure, only 16 percent of the respondents wanted to keep the present marijuana policy, 29 percent wanted to legalize medical marijuana, 5 percent wanted to decriminalize marijuana, and 49 percent wanted to legalize all marijuana. If one considers the sum of the percentage of people opting for decriminalization, legalization of medical marijuana, and legalization of all marijuana as all agreeing medical marijuana should be legal, a total of 83 percent of the respondents felt medical marijuana should be legal, and even this poll commissioned by the most prominent anti-marijuana group in the nation, showed 49 percent of all voters want marijuana legalized for all purposes.
The SAM's Mason-Dixon poll claimed a 3.2 percent margin of error. Americans over 50 make up 43.2 percent of the voting age population. The Mason-Dixon poll was skewed against the legalization of marijuana by having 49 percent of the respondents over the age of 50, the age demographic most likely to want to retain the present federal marijuana policy.
The number of Americans favoring the legalization of marijuana is increasing.
The younger the generation, the more likely they are to support the legalization of marijuana for all purposes. According to the Pew Research Center poll, 70 percent of those polled who were classified Millennials favored legalization, 66 percent of those polled who were classified Generation Xers favored legalization, and 56 percent of those polled who were classified Baby Boomers favored legalization. The only age demographic measured by the Pew poll that had a majority of their members opposing the legalization of marijuana were members of Richard Nixon’s silent majority, meaning those people born before 1945, and now at least 73 years old. Of those older Americans, 58 percent were opposed to the legalization of marijuana, and 35 percent favored the legalization of marijuana. Seven percent had no opinion. This group of Americans are reaching their life expectancies. The future is clear. With 60.83 percent of the public already favoring the complete legalization of marijuana, it should come as no surprise that Congress has already legalized CBD extracted from industrial hemp.
President Trump ignored the findings of his drug task force.
Attorney General Jeff Sessions went on the offensive against marijuana and other drugs shortly after his appointment to the post by President Trump followed by his confirmation by the Republican controlled Senate. Seeking recommendations on how the federal government should “combat” the numerous state laws which allow for growing and selling recreational and/or medical marijuana, Sessions assembled a Justice Department Task Force on Crime Reduction and Public Safety made up of prosecutors and federal law enforcement officials. According to the Department of Justice Office of Public Affairs,
“The Task Force was formed pursuant to the President’s Executive Order on a Task Force on Crime Reduction and Public Safety and will be chaired by the Deputy Attorney General. Task Force members will be drawn from relevant Department components, and will include the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Administrator of the Drug Enforcement Administration (DEA), the Director of the FBI and the Director of the U.S. Marshals Service (USMS).”
On August 4, 2017, the Associated Press announced it had obtained a copy of the Task Force’s internal, confidential report, and the Task Force recommended the federal government continue with Obama’s hands-off approach while the federal government’s role in enforcing the federal marijuana law continues to be studied. Since that time, Trump and Sessions have had nothing to say about the Task Force’s report, and it has never been officially released.
Trump claims he supports the medical use of cannabis. At a October 29, 2015 campaign rally in Sparks, Nevada, where the recreational marijuana ballot initiative was about to pass and medical marijuana was already legal, Trump said, "Marijuana is such a big thing . . .I think medical should happen -- right? Don't we agree? I think so. And then I really believe we should leave it up to the states."
Trump told Bill O’Reilly in October 2016, that he is "in favor of medical marijuana 100%. . . . I know people that have serious problems and they did that they really — it really does help them."
Congress’s action recognizes it makes sense to legalize cannabis, and it makes even more sense to legalize CBD for the entire nation. CBD contained in hemp is one of the oldest remedies in medicine. It is in high demand. It creates jobs growing the hemp from which it comes, extracting it, marketing it, shipping it, and regulating it. It provides a new source of tax revenue. It naturally interacts with the body’s endocannabinoid system. It is perfectly safe. It does not produce a euphoric high. It has minimal, if almost nonexistent, side effects. Millions of people swear it provides them relief. What is there not to like?
Legalizing medical marijuana and CBD extracted from industrial hemp was a step toward fighting the opioid epidemic.
One would think the battle against cannabis would be considered too small potatoes to be worth anyone’s while when America’s drug overdose deaths, mostly from opioid based drugs, totaled 65,501 in 2016 and 71,568 in 2017 according to the National Center of Health Statistics. Opioid overdose deaths have become this nation’s leading cause of death for those under 50 years of age. Meanwhile, the number of marijuana overdose deaths in 2016 and 2017 remained constant at 0. To date there are no confirmed deaths as a result of smoking or ingesting marijuana or any cannabis product.
In October 2014, Marcus A. Bachhuber, M.D., leading a team of researchers at the Center for Health Equity Research and Promotion, Philadelphia Veterans Affairs Medical Center, published in the JAMA Internal Medicine journal an article entitled “Medical Cannabis Laws and Opioid Analgesic Overdose Mortality in the United States, 1999-2010.” The study’s abstract states in pertinent part,
“Opioid analgesic overdose mortality continues to rise in the United States, driven by increases in prescribing for chronic pain. Because chronic pain is a major indication for medical cannabis, laws that establish access to medical cannabis may change overdose mortality related to opioid analgesics in states that have enacted them.
* * * *
“Three states (California, Oregon, and Washington) had medical cannabis laws effective prior to 1999. Ten states (Alaska, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Mexico, Rhode Island, and Vermont) enacted medical cannabis laws between 1999 and 2010. States with medical cannabis laws had a 24.8% lower mean annual opioid overdose mortality rate . . . compared with states without medical cannabis laws. Examination of the association between medical cannabis laws and opioid analgesic overdose mortality in each year after implementation of the law showed that such laws were associated with a lower rate of overdose mortality that generally strengthened over time . . . In secondary analyses, the findings remained similar.
“Medical cannabis laws are associated with significantly lower state-level opioid overdose mortality rates. Further investigation is required to determine how medical cannabis laws may interact with policies aimed at preventing opioid analgesic overdose.” See JAMA Intern Med. 2014;174(10):1668-1673. doi:10.1001/jamainternmed.2014.4005.
In June 2017, the University of California at Berkeley and HelloMD released a survey conducted of 2897 medical cannabis patients. Thirty-four percent of the patients used opioid-based pain medications, and 64 percent of the medical patients used a nonopioid-based pain medication within the preceding six months. According to the survey:
97 percent of those surveyed who took an opioid pain medication “strongly agreed” or “agreed” they were able to decrease the amount of opiates they used when they also consumed cannabis;
81 percent of those surveyed who took an opioid pain medication “strongly agreed” or “agreed” taking cannabis without also taking opioids was more effective than taking cannabis with opioids;
71 percent of those surveyed who took an opioid pain medication “strongly agreed” or “agreed” cannabis produced the same amount of pain relief as their opioid medication;
92 percent of those surveyed who took an opioid pain medication “strongly agreed” or “agreed” they preferred using cannabis than opioids to treat their painful condition;
93 percent of those surveyed who took an opioid pain medication “strongly agreed” or “agreed” they would likely choose a cannabis based pain medication over an opioid based pain medication if the cannabis based remedy was more available;
96 percent of those surveyed who took a nonopioid pain medication “strongly agreed” or “agreed” they did not take as much of their nonopioid pain medication when using cannabis; and,
92 percent of those surveyed who took a nonopioid pain medication “strongly agreed” or “agreed”, cannabis eased their pain better than their nonopioid pain medication.
See Reiman, Amanda; Welty, Mark; Solomon, Perry: “Cannabis as a Substitute for Opioid-Based Pain Medication: Patient Self-Report;” Cannabis and Cannabinoid Research, Vol. 2, No. 1; Jun 2017; https://doi.org/10.1089/can.2017.0012.
Labor Statistics examined from 1992 to 2015 by researchers working for the International Journal of Drug Policy discovered evidence supporting the proposition that workplace deaths decline almost 34 percent within five years after a state legalized medical cannabis. The reasoning is that less harmful marijuana or CBD replaced alcohol and/or prescription drugs, especially for workers between 25 and 44 years old.
Legalized cannabis brings in tax revenues.
All states where marijuana has been legalized have begun to rely on the tax revenues it raises. In the first month recreational marijuana was legalized in Nevada, $3.68 million in tax revenues were raised from combined medical and recreational marijuana sales. In the first year, it brought in $53.53 million. That money goes to financing schools and to Nevada’s rainy day fund. According to the investment banking Cowen Group, legal marijuana is projected to have $75 billion in sales by 2030 at which time the legal marijuana industry is projected to contribute $17.5 billion in tax revenue.
According to the Tax Foundation, “A mature marijuana industry could generate up to $28 billion in tax revenues for federal, state, and local governments, including $7 billion in federal revenue: $5.5 billion from business taxes and $1.5 billion from income and payroll taxes.”
Summary of legal basis for our selling and shipping CBD interstate:
Since February 7, 2014, when President Barack Obama signed into law the Agricultural Act of 2014, there have been no known instances of store owners who stock CBD products being prosecuted for trafficking in a Schedule I narcotic. In some instances, the store owner’s entire inventory of CBD products has been confiscated never to be returned. The loss of inventory could be seen as punishment enough, but the likely reason for the state’s failure to further prosecute such store owners is because the prosecutor and the police are uncertain about the legitimacy of their case. It may also be impossible to get a criminal conviction when no one has anything bad to say about CBD. Under the threat of being criminally charged, the store owner simply stops selling CBD products and becomes afraid to seek compensation for their lost inventory.
CBD raids are usually instigated by just a few people in any given state, generally older, white men who fit the demographic of those least likely to favor the complete legalization of marijuana, and who usually have a history of being opposed to anything cannabis having never smoked marijuana themselves. They are the last of the holdouts standing against a rising tide of public opinion, and they usually react to a CBD store that advertises, especially if they have the temerity to advertise their CBD products on television.
To many people with chronic and debilitating ailments CBD is a godsend, and because of that fact, federal legislation has been passed allowing CBD extracted from industrial hemp pursuant to a pilot program overseen by a state department of agriculture to be legally sold and shipped to customers in all states and territories. This is true whether or not the customer lives in a state that has legalized medical marijuana, or in a state that has a similar industrial hemp pilot program, or in a state that has only legalized CBD for a limited purpose, or in a state that has only legalized CBD produced in that state, or in a state that has outlawed CBD entirely.
It is constitutionally impermissible for government law enforcement officials, whether federal, state, or local, to raid a store selling CBD products, arrest the proprietor, and/or seize the store’s CBD products without first establishing probable cause to believe those CBD products were not made pursuant to a state certified industrial hemp pilot program and/or that the CBD products contain more than 0.3 percent Delta-9 THC on a dry weight basis. How the police would establish such probable cause is anyone’s guess.
If CBD is extracted from industrial hemp grown pursuant to the requirements set forth in the Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014 and is manufactured pursuant to the requirements established by a state’s department of agriculture, then that CBD may be legally sold and shipped to all states and territories, and this conclusion is supported by:
a. The Constitution’s Supremacy Clause that requires states comply with federal law;
b. The Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014 that encourages and provides for the marketing of industrial hemp products;
c. Section 729 of the Consolidated Appropriations Act of 2018 that forbids the Department of Justice from interfering with the marketing of industrial hemp products in interstate commerce;
d. An Amicus brief filed with the United States Court of Appeals for the Ninth Circuit by 25 United States Representatives and three United States Senators summarizing the congressional intent behind Congress legalizing industrial hemp research and passing the predecessor to Section 729 as an amendment to the federal budget; and,
e. The Commerce Clause that gives to Congress the sole ability to regulate interstate commerce.
The United States Department of Justice could prosecute recreational marijuana cases in states that have legalized recreational marijuana but has chosen not to do so.
The United States Department of Justice (DOJ) takes the position marijuana is still illegal under federal law and, therefore, it could prosecute medical marijuana providers if it were not for Congress cutting off all funds for it to do so. The prohibition on using federal funds to prosecute medical marijuana has for the last four years been added as an amendment to the budget and was attached to the most recent federal budget good through September 30, 2018. See Section 532 of the Consolidated Appropriations Act of 2018. The industrial hemp equivalent is Section 729.
When it comes to recreational marijuana, if it chooses to do so, the DOJ could enforce the federal law treating marijuana as a Schedule I drug under the Controlled Substances Act, 21 U.S.C. §802 (16), (44), §812(a), (c)(Schedule I)(c)(10). Nine states and the District of Columbia have legalized recreational marijuana. The Trump administration is over 17 months old, and the DOJ has chosen not to prosecute recreational marijuana where it has been legalized despite Sessions revoking the Cole memorandum to raise the priority of medical marijuana prosecutions and despite Sessions directing all U.S. Attorneys to charge drug offenders with whatever drug offense will result in the longest prison sentence. Prior to being appointed Attorney General, Sessions had publicly blamed marijuana for inciting violence, described it as a “very real danger,” and Session said, “good people don’t smoke marijuana."
The DOJ’s failure to prosecute recreational marijuana cases is likely a recognition of the growing public support for legalizing marijuana. This support passed a tipping point in 2012 when the Gallop pole showed more than half of all Americans favored legalizing marijuana. In April 1990, 43-year-old Donald Trump told the Sarasota Herald-Tribune, "We're losing badly the war on drugs . You have to legalize drugs to win that war. You have to take the profit away from these drug czars. . . . people will start to realize that this is the only answer; there is no other answer."
In Nevada where PharmaXtracts has its operations, a hemp grower’s license must be issued by the Nevada Department of Agriculture (NDA) to grow industrial hemp, and the hemp is inspected and tested by the NDA to make sure its flowering parts do not exceed 0.3 percent Delta-9 THC. A Hemp Handler’s License must be received by the NDA for a Nevada based business (like PharmaXtracts) to extract CBD from hemp, make, and market CBD products. This requires various safety and sanitation requirements be met. At every step of the process, the state collects taxes from the farmer of the hemp and the manufacturer and marketer of the CBD.
There were never drug czars involved in marketing CBD since it is not taken for recreational purposes, and the medical benefits of CBD have only been widely discussed since states began legalizing medical marijuana. Most of the public has still not heard of CBD and are completely unaware of it and are unaware it has any medical properties, but the news of CBD is quickly spreading through certain communities such as veterans who are suffering from pain, head injuries, and post-traumatic stress disorders.
The language of the Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014 encourages and anticipates the marketing of industrial hemp products nationwide.
The Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014:
The federal law protecting marketing products made from industrial hemp is contained in the Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014 (“2014 Farm Bill”), 7 U.S.C. §5940, that states in full,
“(a) IN GENERAL Notwithstanding the Controlled Substances Act (21 U.S.C. 801 et seq.), chapter 81 of title 41, or any other Federal law, an institution of higher education (as defined in section 1001 of title 20) or a State department of agriculture may grow or cultivate industrial hemp if—
“(1) the industrial hemp is grown or cultivated for purposes of research conducted under an agricultural pilot program or other agricultural or academic research; and
“(2) the growing or cultivating of industrial hemp is allowed under the laws of the State in which such institution of higher education or State department of agriculture is located and such research occurs.
“(b) DEFINITIONS In this section:
“(1) AGRICULTURAL PILOT PROGRAM The term “agricultural pilot program” means a pilot program to study the growth, cultivation, or marketing of industrial hemp—
“(A) in States that permit the growth or cultivation of industrial hemp under the laws of the State; and
“(B) in a manner that—
“(i) ensures that only institutions of higher education and State departments of agriculture are used to grow or cultivate industrial hemp;
“(ii) requires that sites used for growing or cultivating industrial hemp in a State be certified by, and registered with, the State department of agriculture; and
“(iii) authorizes State departments of agriculture to promulgate regulations to carry out the pilot program in the States in accordance with the purposes of this section.
“(2) INDUSTRIAL HEMP
“The term “industrial hemp” means the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.
“(3) STATE DEPARTMENT OF AGRICULTURE
“The term 'State department of agriculture' means the agency, commission, or department of a State government responsible for agriculture within the State.”
Industrial hemp products are exempt from the Controlled Substances Act.
The language of 7 U.S.C. §5940(a) [“Notwithstanding the Controlled Substances Act (21 U.S.C. 801 et seq.), chapter 81 of title 41, or any other Federal law”] makes clear industrial hemp products are exempt from the Controlled Substances Act, 21 U.S.C. 801, et seq. Nothing made from industrial hemp can be considered a controlled substance if the industrial hemp is grown pursuant to a state sanctioned pilot program overseen by the state’s department of agriculture. 7 U.S.C. §5940(a)(2). PharmaXtracts' CBD begins by being extracted from industrial hemp grown pursuant to one of these state pilot programs and, therefore, PharmaXtracts CBD is not subject to the Controlled Substances Act.
The Ninth Circuit agreed in its unpublished memorandum opinion in the case of Hemp Industries Association v. Drug Enforcement Agency, 9th Cir. Case No. 17-70162, filed April 30, 2018 (Hemp III). There, the Ninth Circuit found, "The Agriculture Act contemplates potential conflict between the Controlled Substances Act and preempts it.” Id., p. 4, emphasis added. See https://www.scribd.com/document/386665942/Hemp-Industries-Association-v-Drug-Enforcement-Agency-9th-Cir-Case-No-17-70162-Filed-April-30-2018-Hemp-III. This means the Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014 (2014 Farm Bill) controls and takes precedence over the Controlled Substances Act.
The power of the Drug Enforcement Administration (“DEA”) to control CBD as a Schedule I drug and, therefore, regulate it under the Controlled Substances Act, and prosecute people for its possession was admitted by the DEA attorney during argument in Hemp III not to apply if the CBD is extracted from industrial hemp pursuant to the Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014. Sarah Carroll, the DEA attorney, admitted in open court,
“I think that you know if something really was outside [Controlled Substances Act] regulations either because it was from an exempt part of the cannabis plant or because it was truly within the four corners of the farm bill then someone would have a valid defense in an enforcement proceeding.” See https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000013083.
What Ms. Carroll’s admission lack’s is an acknowledgment the government has the burden of proof. A store owner accused of selling illegal CBD is presumed innocent and, as such, the CBD is presumed to have been extracted from industrial hemp grown in a state pilot program in conformance with 7 U.S.C. §5940. The burden lies with the government to prove the CBD was not made from legally grown industrial hemp, a nearly impossible task. Ms.Carroll's limitation language, “truly within the four corners of the Farm Bill” is indicative of the skepticism and perhaps disdain those working for the DEA have for the Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014 – as if they cannot believe anything cannabis could possibly be legal.
PharmaXtracts CBD meets the definition of “industrial hemp.”
The language of 7 U.S.C. §5940(b)(2) makes clear “industrial hemp” is defined as “any part of cannabis sativa L., whether growing or not, with a Delta-9 THC concentration not exceeding 0.3 percent on a dry weight basis.” (Emphasis added.)
PharmaXtracts' CBD is extracted from cannabis sativa L. plants, and CBD is as much a part of the plant as its stalk fibers spun into rope. CBD, like rope made from industrial hemp, are both defined as “industrial hemp” pursuant to 7 U.S.C. §5940(b)(2) and may both be sold to “study the . . . marketing of industrial hemp” [see 7 U.S.C. §5940(b)(1)] “for purposes of research conducted under an agricultural pilot program” [see 7 U.S.C. §5940(a)(1)] in a state where “the growing or cultivating of industrial hemp is allowed . . . in which such . . . State department of agriculture is located and such research occurs.” See 7 U.S.C. §5940(a)(2). Studying the market for industrial hemp products would be frustrated if industrial hemp products could not be marketed to customers in every other state whether or not those states also have industrial hemp pilot programs or consider CBD legal.
A congressional Amicus brief clearly evidences Congress’s intent in passing the Farm Bill.
The classification of CBD as industrial hemp is consistent with the intent of Congress. On January 11, 2018, in Hemp III, supra, three United States Senators and 25 United States Representatives who sponsored and/or were instrumental in enacting the Legitimacy of Industrial Hemp Research section of the 2014 Farm Bill (7 U.S.C. §5940) filed an Amicus brief stating the congressional intent behind the Farm Bill’s passage (hereinafter referred to as “Amicus brief”). See https://www.scribd.com/document/386666735/Hemp-Industries-Congressional-Amicus-Brief.
The Ninth Circuit was not able to consider the Amicus brief because the information contained in it was not presented to the District Court below, but the Amicus brief can now be considered when interpreting the language of the Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014 in all further court hearings.
According to the Amicus brief,
“Amici have an interest in ensuring that the Executive and Judicial branches construe the Farm Bill and the Spending Bill in accordance with their text and purpose, and seek to share their insight on these matters with this Court.
“After decades of careful consideration during 2013 and 2014, Congress took steps to authorize pilot programs to study the cultivation of and market for industrial hemp. It did so through the Farm Bill and Spending Bill.” Amicus brief, p. 3.
With respect to CBD, the Amicus brief states,
“The Farm Bill implicitly gives equal status to all products and derivatives that may be extracted from any cannabis plant which fall below 0.3% THC and thereby qualify as industrial hemp under the Farm Bill. Amicus brief, p. 25.
* * * *
“In enacting the Farm Bill, it was Congress’s purpose that industrial hemp and any derivatives, extracts, and uses thereof would be exempted from the definition of 'marihuana' under the [Controlled Substances Act]. We know this because many of us helped draft the provisions and voted for them. Amicus brief, p. 28.
The language of the Spending Bill must be considered when interpreting the reach of the Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014.
Congress made clear in its Amicus brief the language of the Spending Bill, which has remained essentially unchanged, and the language of the Agricultural Act of 2014 both need be considered to understand the full reach of both bills.
The Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014 already bans the federal government from treating industrial hemp and industrial hemp products as if they were marijuana subject to the Controlled Substances Act. But preempting the Controlled Substances Act was not enough if the federal government could prohibit shipping industrial hemp products from one state to the next. To guard against such overreach, Congress passed Section 729 of the Consolidated Appropriations Act of 2018 that bans federal funds from being used to “prohibit the transportation . . . sale, or use of industrial hemp . . . within or outside the State in which the industrial hemp is grown or cultivated.” The full language of Section 729 of the Consolidated Appropriations Act of 2018 is as follows,
“None of the funds made available by this Act or any other Act may be used –
“(1) in contravention of section 7606 of the Agricultural Act of 2014 (7 U.S.C. 5904); or
“(2) to prohibit the transportation, processing, sale, or use of industrial hemp, or seeds of such plant, that is grown or cultivated in accordance with subsection section 7606 of the Agricultural Act of 2014, within or outside the State in which the industrial hemp is grown or cultivated."
The language of Section 729 of the Consolidated Appropriations Act of 2018 is consistent with the intent of Congress to allow CBD products legally manufactured in states with industrial hemp pilot programs to be transported to, sold within, and used within any state as already provided for by 7 USC §5940 and the congressional intent behind its passage.
As stated in the Amicus brief,
“Through the marketing provision, Congress legalized the underlying commercial activity. This included any commercial marketing of industrial hemp extracts and derivatives, so long as the products fell under the THC threshold level. Congress did not restrict, nor even purport to define or limit under federal law, the myriad research and marketing-related activities the States might authorize and monitor.” Amicus brief, p. 15.
The Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014 was also a jobs bill.
The Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014 is as much a jobs bill as it is a way to satisfy the public’s demand for hemp fiber and CBD. As stated in the Amicus brief,
“Representative Massie explained during the initial floor debate on H.R. 1947 on June 19, 2013, ‘[t]his is not about drugs. This is not about a drugs bill. This is about jobs. And for . . . farmers . . ., we need the opportunity to compete globally, in a global market, and we shouldn’t be denied this outlet for another productive crop.’” Amicus brief at 25-26 citing Federal Agriculture Reform and Risk Management Act of 2013: Hearing on H.R. 1947, 113th Cong. Rec. H3897-98 (2013) (statement of Rep. Massie).
* * * *
“Senator Wyden [said], if ’this farm bill is about empowering farmers and increasing rural jobs, let’s give them tools they need to get the job done. Let’s boost revenue for farmers and reduce the overhead costs for the businesses around the country that use this project. And let’s put more people to work growing and processing an environmentally friendly crop with a ready market in the United States.’” Amicus brief at 26, citing id. at S4139.
Industrial hemp products are meant to freely flow in interstate commerce.
Congress made clear its intent that states abide by the language of the 2014 Farm Bill and the Spending Bill “in order to research the viability of industrial hemp as an agricultural crop.” Failure of a state to allow industrial hemp products to be sold to residents of that state or shipped into that state or across that state would frustrate such research by interfering with the free market and by lessening the economic impact of growing industrial hemp as an agricultural crop. It was the intent of Congress that no state be allowed to interfere with this job development. As stated in the Amicus brief,
“After decades of careful consideration during 2013 and 2014, Congress took steps to authorize pilot programs to study the cultivation of and market for industrial hemp. It did so through the Farm Bill and Spending Bill. In passing these laws, Congress sought to clearly establish rules that both the Executive Branch and the individual States must follow in order to research the viability of industrial hemp as an agricultural crop. Amicus brief, p. 3 (emphasis added).
* * * *
“The Farm Bill was, in places, intentionally broad in order to encompass activities including the study of the market for industrial hemp ('a pilot program to study the growth, cultivation, or marketing of industrial hemp') (emphasis added) and to permit states to select partners to assist with the growth and cultivation of industrial hemp. . . . Congress recognized the need for research and development to investigate market potential of domestic industrial hemp agriculture, including hemp agronomics, the economic impact of hemp-derived cannabinoids such as CBD, diversion controls, and the overall hemp products retail market.” Amicus brief, pp. 13-14 (emphasis added).
The “market potential of domestic industrial hemp agriculture” including the “economic impact of hemp-derived cannabinoids such as CBD” and the “overall hemp products retail market” cannot be effectively researched if the ability to sell and ship industrial hemp products, including CBD, to customers in all states and territories is hampered by some states and territories refusing to cooperate. Sellers of industrial hemp products in states with pilot programs would need keep up with the cannabis laws of all 50 states and 14 territories on a daily basis. In addition, it would be impossible to ship industrial hemp products cross country because somewhere along the way the industrial hemp product might pass through a state where its possession by the courier would be considered trafficking in a controlled substance.
The Amicus brief goes on to say,
“The fact that the Farm Bill clearly contemplated experimentation with a commercial market for industrial hemp is underscored by passage of the Spending Bill provisions, which prohibit DEA from spending funds to 'prohibit [the] transportation, processing, sale, or use of industrial hemp that is grown or cultivated in accordance with . . . the Agricultural Act of 2014, within or outside the State in which the industrial hemp is grown or cultivated.' [citation omitted, emphasis added]. This language assumes that industrial hemp grown pursuant to the Farm Bill will be sold and transported within and between states. Amicus brief, pp. 14-15.
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“ . . . Taken together, the Farm Bill and the Spending Bill specified that the DEA – or any other law enforcement agency – could not take any action, even allegedly in furtherance of the [Controlled Substances Act], which would contradict any activity defined as lawful under the Farm Bill. Amicus brief, p. 17.
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“Congress passed the Farm Bill, indicating that industrial hemp is a safe and beneficial agricultural crop which should not be treated as a drug, so long as it met the defined THC threshold.” Amicus brief, pp. 28-29.
States that treat industrial hemp or its main extract, CBD, as a drug are acting contrary to Congress’s intent in passing the Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014 and are acting in violation of the Supremacy Clause.
The Supremacy Clause applies the Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014 to all states, and no state can pass laws that interfere with the marketing of industrial hemp products, including CBD.
Congress intended individual states be able to research the viability of industrial hemp as an agricultural crop without obstruction. By passage of the Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014 and Section 729 of the Consolidated Appropriations Act of 2018, Congress intended all states and territories, even those not choosing to establish their own pilot programs, be required to allow the importation and use of industrial hemp products produced in states with industrial hemp pilot programs. The Supremacy Clause requires the laws of the State be subservient to the Constitution and all federal laws as may be enacted as provided for by the Constitution, and all state judges are so bound.
The Supremacy Clause found in Article VI, Clause 2 of the Constitution states,
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Pursuant to the Supremacy Clause, no state judge can enforce any state law that frustrates the purposes of the Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014, 7 USC §5940. Upon passage of the Farm Bill, the states lost control to regulate anything made from industrial hemp grown pursuant to a state authorized pilot program. This was the intent of Congress in passing the legislation.
As stated in the Amicus brief,
“ . . . the purpose of the Farm Bill was to allow State departments of agriculture and institutions of higher education to undertake research related to marketing and commercial activity, employment data, exports, product development, retail market development, diversion controls, and public policy.” Amicus brief, pp. 14-15.
Chapter 557 of the Nevada Revised Statutes established the kind of industrial hemp pilot program anticipated by the Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014, 7 U.S.C. §5940.
NRS 557.040, NRS 557.060, and NRS 453A.155 jointly serve to define industrial hemp the same as 7 USC §5940(b)(2). NRS 557.020 defines an agricultural pilot program as “a program to study the growth, cultivation or marketing of industrial hemp.”
NRS 557.030 and NRS 557.070(1) provide the Nevada State Department of Agriculture the power to grow or cultivate industrial hemp for purposes of agricultural or academic research conducted under an agricultural pilot program.
NRS 557.080(3) specifically provides the State Board of Agriculture may adopt regulations . . . [to] restrict or prohibit the use or processing of industrial hemp for the creation, manufacture, sale or use of cannabidiol or any compound, salt, derivative, mixture or preparation of cannabidiol.”
The Nevada Department of Agriculture has not placed any export restrictions or diversionary controls on PharmaXtracts exporting its CBD products by selling and shipping its CBD products to customers in all states and territories. PharmaXtracts has a Hemp Handler’s License issued by the Nevada Department of Agriculture. PharmaXtracts generates extensive information relative to its marketing and commercial activities and has responded to all requests for information received from the Nevada Department of Agriculture for research purposes. PharmaXtracts’ national marketing of CBD allows the Nevada Department of Agriculture to conduct research related to marketing and commercial activity as well as employment data.
According to the Amicus brief,
“It is hard to imagine how States might accomplish the foreseen 'marketing of industrial hemp,' including 'transportation, processing, sale or use of industrial hemp' without public-private partnerships, State licensure of private individuals and corporations, and other collaborations that the State or educational institutions deemed necessary. Moreover, 'marketing' certainly included commercial activity that would be studied, as well as the research and development of manufacturing, refinement, and marketing techniques for sales of industrial hemp and its derivative products.” Amicus brief at 15-16, citing C. DEA Actions Subsequent To The Enactment Of The Farm Bill Lead Congress To Use Its Article I Power Of The Purse To Restrict DEA Interference With State Authorized Industrial Hemp Pilot Programs, emphasis added.
The language of the Amicus brief makes clear Congress intended for firms such as PharmaXtracts to be part of a public-private partnership to act with their state departments of agriculture to market industrial hemp by selling its derivative CBD within and between states.
The Amicus brief makes clear Congress intended industrial hemp products be sold to and shipped to customers in all states. According to the Amicus brief,
“Congress recognized and acknowledged the need for research and development to investigate hemp-derived products, including CBD, and gave states broad discretion to create pilot programs to accomplish this research.” Amicus brief, p. 29, emphasis added.
It would not be possible to develop “a ready market in the United States” as anticipated by Senator Wyden when speaking about job development if exports of industrial hemp products from a pilot program state were at the whim of all other states with their various evolving laws on the subject. The need to research and develop hemp-derived products, including CBD, would not be possible or would be highly frustrated if states could enforce laws that would discourage CBD passing through their state or being received in their state.
The Commerce Clause gives to Congress the power to determine what products may be shipped from state to state.
Most states that have legalized CBD have passed legislation to economically benefit their state by requiring all CBD sold in their state to be produced in their state. The Commerce Clause makes such protective laws unconstitutional. The Commerce Clause found in Article I, Section 8, Clause 3 of the Constitution states in pertinent part,
"The Congress shall have power . . . To regulate commerce . . . among the several states . . ."
There is a history of case law that forbids one state from banning imports from another state if the product is the same as that being offered in state. So, if for instance, PharmaXtracts' CBD meets all of California’s stringent testing requirements for insecticides and heavy metals (the toughest in the nation which, of course, we meet), then PharmaXtracts can legally ship CBD to California despite how California attempts to protect its CBD industry from such competition.
In the case of H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525 (1949), the State of New York denied a Massachusetts firm from having additional facilities in New York to process its milk because the proposed expansion would result in destructive competition in a “market already adequately served.” There, the U.S. Supreme Court held “[a] State may not promote its own local economic advantages by curtailing the volume of interstate commerce.” Id. at 530-539.
In the case of Baldwin v. G.A.F.. Seelig, Inc., 294 U.S. 511 (1935), the State of New York prohibited the sale of milk imported from Vermont unless the price was the minimum prescribed by the State of New York. There, the U.S. Supreme Court held a state may prohibit entry for purposes of executing an inspection but may not bar entry of the product." Citing International Textbook Co. v. Pigg, 217 U.S. 91, 217 U.S. 112 (1910) for the proposition, “It is the established doctrine of this court that a state may not, in any form or under any guise, directly burden the prosecution of interstate business.” Baldwin v. G.A.F.. Seelig, Inc., 294 U.S. at 521-522, emphasis added. The U.S. Supreme Court went on to hold,
"We are reminded . . . that a chief occasion of the commerce clause was 'the mutual jealousies and aggressions of the States, taking form in customs barriers and other economic retaliation [citations omitted].' If New York, in order to promote the economic welfare of her farmers, may guard them against competition with the cheaper prices of Vermont, the door has been opened to rivalries and reprisals that were meant to be averted by subjecting commerce between the states to the power of the nation." Id. at 522.
In the case of Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951), Madison, Wisconsin, forbid the sale of milk as pasteurized unless pasteurized and bottled in an approved pasteurization plant within five miles from the center of Madison. There, the U.S. Supreme Court held,
“[S]ince Congress has not spoken to the contrary, the subject matter of the ordinance lies within the sphere of state regulation, even thought interstate commerce may be affected. [Citations omitted.]
“But this regulation like the provision . . . in practical effect excludes from distribution in Madison wholesome milk produced and pasteurized in Illinois. . . . In thus erecting an economic barrier protecting a major local industry against competition from without the State, Madison plainly discriminates against interstate commerce. [Citation omitted.] This it cannot do, even in the exercise of its unquestioned power to protect the health and safety of its people, if reasonably nondiscriminatory alternatives, adequate to conserve legitimate local interests are available. Id. at 353-354.
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“To permit Madison to adopt a regulation not essential for the protection of local health interests and placing a discriminatory burden on interstate commerce would invite a multiplication of preferential trade areas destructive of the very purpose of the Commerce Clause. Under the circumstances here presented, the regulation must yield to the principle that “one state, in its dealings with another, may not place itself in a position of economic isolation.” Id. at 356, citing Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 527 (1935).
In the case of Granholm v. Heald, 544 U.S. 460 (2005), a set of consolidated cases were heard challenging “state laws regulating the sale of wine from out-of-state wineries to consumers in Michigan and New York [where the object of the laws were to] allow in-state wineries to sell wine directly to consumers in that State but to prohibit out-of-state wineries from doing so, or, at the least, to make direct sales impractical from an economic standpoint.” Id. There, the U.S. Supreme Court held,
“Time and again this Court has held that, in all but the narrowest circumstances, state laws violate the Commerce Clause if they mandate 'different treatment of in-state and out-of-state economic interests that benefits the former and burden the latter.' [Citations omitted.] This rule is essential to the foundations of the Union. The mere fact of nonresidence should not foreclose a producer in one State from access to markets in other States. [Citation omitted.] States may not enact laws that burden out-of -state producers or shippers simply to give a competitive advantage to in-state businesses. This mandate 'reflect[s] a central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanizatin that has plagued relations among the Colonies and later among the States under the Articles of Confederation.” Id., citing Hughes v. Oklahoma, 441 U.S. 322, 325-326 (1979).
The U.S. Supreme Court concluded,
“State laws that discriminate against interstate commerce face “a virtually per se rule of invalidity.” Granholm v. Heald, id. citing Phaladelphia v. New Jersey, 437 U.S. 617, 624 (1978).
In the case of Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945), the State of Arizona banned trains over a certain length from entering the state for safety reasons. There, the U.S. Supreme Court held,
“For a hundred years, it has been accepted constitutional doctrine that the commerce clause, without the aid of Congressional legislation, thus affords some protection from state legislation inimical to the national commerce, and that, in such cases, where Congress has not acted, this Court, and not the state legislature, is, under the commerce clause, the final arbiter of the competing demands of state and national interests. Id. at 769, emphasis added.
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“[I]n general, Congress has left it to the courts to formulate the rules thus interpreting the commerce clause in its application, doubtless because it has appreciated the destructive consequences to the commerce of the nation if their protection were withdrawn. . . .” Id. at 770.
So long as PharmaXtracts's CBD meets all the most stringent health standards, contains no other cannabinoids, pesticides, or heavy metals, there is no rational basis for discriminating against PharmaXtracts’ CBD products in favor of CBD products made within another state and, therefore, it is a violation of the Commerce Clause for any state to ban the importation and sale of PharmaXtracts' CBD products manufactured in compliance with Nevada's industrial hemp pilot program.
CBD raids have been the result of an illegal selective prosecution.
CBD extracted from industrial hemp grown pursuant to state regulated pilot programs passed in compliance with the Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014 may be legally sold and shipped to customers in every state and territory. Raids on CBD retailers have been the result of selective prosecution in violation of the Fourteenth Amendment that states, "nor shall any state deny to any person within its jurisdiction the equal protection of the laws."
The raids on stores selling CBD products have been instigated by the CBD store advertising its wares and being too visible. Meanwhile, large retailers such as Amazon and Walmart have been quietly selling in every state and territory without incident “hemp oil” (just enter “CBD” on their websites' search engines). Any product advertised as a full spectrum hemp oil contains both CBD and likely some THC. Admittedly, the products advertised on Amazon's and Walmart's websites avoid saying they contain CBD and merely advertise themselves as full spectrum hemp oils. To raid the small vape shop and not the Walmart Supercenter next door simply because the vape shop is advertising it sells CBD is not only a violation of the Fourteenth Amendment but is also a First Amendment violation because the selective raid is caused by the shop keeper exercising his right of free speech through his advertising, and the raids are meant to chill that speech.
Hemp containing CBD is the oldest and safest remedy known to man. It does not produce a euphoric high, but a lot of States are attempting to regulate it as if it does. The applicable federal statutes establish the legality of CBD extracted from industrial hemp. The interpretation of these statutes is greatly assisted by members of Congress filing an Amicus brief with the Ninth Circuit clearly stating their intentions when they passed the Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014 and the precursor to Section 729 of the Consolidated Appropriations Act of 2018. Such a clear statement of congressional intent is rarely available, and the Amicus brief fully supports the legal conclusions contained in this letter.
The intent of Congress in passing the law and the meaning of the law thus clarified and confirmed are clear: Other than regulations establishing state industrial hemp pilot programs, laws outlawing CBD in states without such pilot programs or state laws that restrict CBD’s use or importation violate the Supremacy Clause, the Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014, Section 729 of the Consolidated Appropriations Act of 2018, and the Commerce Clause so long as the CBD is extracted from industrial hemp legally grown in a state that adopted an industrial hemp pilot program. That is why PharmaXtracts legally sells and ships its CBD products to customers in all states and territories.
/s/ Robert J. Kossack
Robert J. Kossack, J.D.
PharmaXtracts Legal Department
PharmaXtracts manufactures and markets its cannabidiol products in compliance with the Legitimacy of Industrial Hemp Research section of the Agricultural Act of 2014, 7 U.S.C. §5940. This opinion has been prepared by PharmaXtracts to state its legal basis for selling and shipping its cannabidiol products to customers in every state and territory. The legal arguments made herein may not be enough to convince every law enforcement official in every state and territory to accept PharmaXtracts’ position. No test case has been brought before a federal court to confirm the correctness of the arguments made herein because no arrests have been made of marketers or consumers of cannabidiol products since the passage of the Agricultural Act of 2014. Customers, brokers, and retailers of PharmaXtracts cannabidiol products are advised to seek a legal opinion from an attorney of their own choice in the state of their residency or operations.
None of the statements made herein have not been evaluated by the United States Food and Drug Administration. PharmaXtracts CBD products are not intended to diagnose, treat, cure, or prevent any disease. A doctor’s advise should be sought before using PharmaXtracts CBD products or any other cannabis extract especially if you have a serious medical condition, use prescription medications, are pregnant, or are nursing a child. PharmaXtracts' CBD products are not for sale to those under the age of 21 years, and PharmaXtracts' CBD products should be kept out of the reach of children.