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CBD 102

CBD 102

The Rohrabacher-Farr Amendment curtails the Department of Justice prosecuting state regulatory authorities, growers, dispensaries, and patients in states that have passed legislation legalizing medical marijuana.

Since 2003, Congressmen Dana Rohrabacher (R-CA) and Sam Farr (D-CA) routinely tried to add an amendment to federal budget bills to protect states with medical marijuana programs, medical marijuana growers and distributors, and medical marijuana patients from federal prosecution, and for years their amendment failed to receive the necessary number of votes. Finally, in April 2013, the Rohrabacher-Farr Amendment received enough votes to be added to the omnibus spending bill. The original Rohrabacher-Farr Amendment read as follows:

“None of the funds made available in this [Consolidated and Further Continuing Appropriations Act of 2015 (the 2015 Act) funding the federal government through September 30, 2015] to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

The Rohrabacher-Farr Amendment passed the House by a vote of 219 to 189 and then the Senate by a voice vote before becoming Section 538 of the 2015 Act which was then passed in its entirety and signed into law by President Obama on December 16, 2014. The Rohrabacher-Farr Amendment has been attached to all succeeding budget bills. The last renewal adding additional states expired December 8, 2017.  Previously, Congress passed a short-term budget extension on April 28, 2017, and then another one on May 5, 2017, and then another one on October 19, 2017. Prior to the October 19, 2017 extension, in July 2017, a replica of the Rohrabacher-Farr Amendment entered the budget as part of the Hurricane Harvey emergency aid package which was approved by Congress on October 19, 2017, which was scheduled to remain in effect until December 8, 2017.

On the eve of the December 8, 2017 expiration, Congress passed another short-term budget extension on December 7, 2017, which will expire on December 22, 2017, as the Republicans try to piece together their yearly budget for 2018.

Congressmen Dana Rohrabacher (R-CA).  File photo.

Four days prior to President Donald Trump signing the May 5, 2017 budget extension into law to avoid a government shutdown, Attorney General Jeff Sessions sought the amendment’s removal from the budget extension by writing Republican congressional leaders,

“I believe it would be unwise for Congress to restrict the discretion of the Department to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime . . . . The Department must be in a position to use all laws available to combat the transnational drug organizations and dangerous drug traffickers who threaten American lives.”

Sessions was speaking about patients' use of medical marijuana in contradiction to President Trump’s previous campaign pledge to leave medical marijuana up to the individual states and his stated supported of medical Cannabis “100 percent.”

White House Press Secretary Sean Spicer had previously reiterated Trump’s support for medical marijuana saying,

"I think medical marijuana, I've said before that the president understands the pain and suffering that many people go through who are facing especially terminal diseases and the comfort that some of these drugs, including medical marijuana, can bring to them.  And that's one that Congress, through a rider . . . put in an appropriations bill saying the Department of Justice wouldn't be funded to go after those folks.  There is a big difference between that and recreational marijuana."  See Sullum, Jacob, “Trump’s Medical Marijuana Threat Contradicts the Law and His Own Position,” Reason Retrieved, May 8, 2017, http://reason.com/blog/2017/05/08/trumps-medical-marijuana-threat-contradi

Regardless of his previous support for leaving the regulation of medical marijuana up to the states, when Trump signed the $1 trillion budget extension on May 5, 2017, he added the following signing statement:

"Division B, section 537 provides that the Department of Justice may not use any funds to prevent implementation of medical marijuana laws by various States and territories.  I will treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed."  

As usual, Trump is all over the board and his “policy,” if it can be called that, is as steady as the wind.

Attorney General Jeff Sessions and President Donald Trump.  Photo credit CBS News.

The issue of rising crime is a red herring which Sessions and Trump often tout as a means of scaring the public into adopting their positions or purely for political effect.  Although violent crime slightly increased in 2015 and 2016, it still remains at historically low levels having dropped from 758 violent crimes per 100,000 U.S. inhabitants in 1991 to 386 violent crimes per 100,000 U.S. inhabitants in 2016 according to the FBI Uniform Crime Reporting program.  See Berman, Mark, “Violent crimes and murders increased in 2016 for a second consecutive year, FBI says,” Washington Post, September 25, 2017.

Sessions linking liberalization of marijuana laws to the present opioid epidemic is also misplaced.  A coalition of researchers representing the Consumer Financial Protection Bureau, Harvard University, and Western Carolina University, using as their data Future’s annual surveys of high school seniors, which surveys began in 1975, concluded, “[M]arijuana liberalizations have had minimal impact on the examined outcomes.  Notably, many of the outcomes predicted by critics of liberalizations, such as increases in youth drug use and youth criminal behavior, have failed to materialize in the wake of marijuana liberalizations.”  See Dills, Angela K, et al., National Bureau of Economic Research, Working Paper No. 23779, September 2017, nber.org/papers/w23779.

In July, 2017, the replica of the Rohrabacher-Farr Amendment was introduced before the Senate Appropriations Committee by Senator Patrick Leahy (D-VT.), and the Amendment was added to the Commerce, Justice, Science, and Related Agencies fiscal year 2018 budget.  After the Senate Appropriations Committee approved the amendment’s inclusion by a voice vote, the U.S. House Committee on Rules blocked a vote on the amendment.  According to Rep. Duncan Hunter (R-CA.), the Republican leadership claimed “it splits the conference too much so we’re not going to have a vote on it.”  See Hooper, Molly K., “House GOP blocks vote protecting medical marijuana states,” The Hill, September 6, 2017, thehill.com/video/lawmaker-interviews/349492-house-gop-blocks-vote-protecting-medical-marijuana-states.  However, the amendment was renewed as part of the Hurricane Harvey emergency aid package which was approved by Congress and will remain in effect until December 8, 2017.  After expiration of the aid package, the amendment will go to a House-Senate conference committee.  See Schroyer, John, “Rohrabacher-Blumenauer Amendment extended until December,” Marijuana Business Daily, September 8, 2017.

Senator Patrick Leahy (D-VT).  Photo credit Washington Post.

The Cole Memorandum set a series of priorities when dealing with medical marijuana issues.

On August 29, 2013, prior to Obama signing the budget bill to which the Rohrabacher-Farr Amendment was attached, Deputy Attorney General James M. Cole sent a memorandum to all United States Attorneys, later referred to as the Cole Memorandum.  In light of Cole being a Democrat who was appointed by Obama, the initial language of the Cole Memorandum did not sound the least bit liberal, or even accurate, starting out with, “Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels.”  However, the Cole Memorandum acknowledged that several states had enacted laws allowing for medical marijuana, and the Cole Memorandum established priorities for the Department of Justice’s enforcement of federal laws related to marijuana.  In particular, the Cole Memorandum established eight priorities, those being to prevent (1) distribution of medical marijuana to minors, (2) revenue from medical marijuana sales going to criminal enterprises, (3) diversion of medical marijuana from states where medical marijuana is legal to states where it is not, (4) medical marijuana being used as a pretext to traffic in other drugs, (5) farming and distributing medical marijuana becoming the cause of violence involving the use of firearms, (6) medical marijuana resulting in drugged driving, (7) growing medical marijuana on public lands and, (8) using medical marijuana on federal property.

The Cole Memorandum further acknowledge that strict state regulation of medical marijuana might solve some of those problems.  As stated in the Cole Memorandum,

“. . . the Department of Justice has not historically devoted resources to prosecuting individuals whose conduct is limited to possession of small amounts of marijuana for personal use on private property.  Instead, the Department has left such lower-level or localized activity to state and local authorities and has stepped in to enforce the [Controlled Substances Act] only where the use, possession, cultivation, or distribution of marijuana has threatened to cause one of the harms identified above.”

* * * *

“[I]n jurisdictions that have enacted laws legalizing marijuana in some form and that have also implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale, and possession of marijuana, conduct in compliance with those laws and regulations is less likely to threaten the federal priorities set forth above.  Indeed, a robust system may affirmatively address those priorities by, for example, implementing effective measures to prevent diversion of marijuana outside of the regulated system and to other states, prohibiting access to marijuana by minors, and replacing an illicit marijuana trade that funds criminal enterprises with a tightly regulated market in which revenues are tracked and accounted for.  . . . enforcement of state law by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity. . . .

“The Department’s previous memoranda specifically addressed the exercise of prosecutorial discretion in states with laws authorizing marijuana cultivation and distribution for medical use.  In those contexts, the Department advised that it likely was not an efficient use of federal resources to focus enforcement efforts on seriously ill individuals, or on their individual caregivers. . . .

“. . . [B]oth the existence of a strong and effective state regulatory system, and an operation’s compliance with such a system, may allay the threat that an operation’s size poses to federal enforcement interests.  Accordingly, in exercising prosecutorial discretion, prosecutors should not consider the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the Department’s enforcement priorities . . . The primary question in all cases – and in all jurisdictions – should be whether the conduct at issue implicates one or more of the enforcement priorities . . .”  See http://420lawoffice.com/full-text-of-the-cole-memorandum-on-medical-marijuana/.

Former Deputy Attorney General James M. Cole.  Photo credit AP/Susan Walsh

The Department of Justice intentionally attempted to mislead Congress in its attempt to block passage of the Rohrabacher-Farr Amendment.

It was clear to all members of Congress that the Rohrabacher-Farr Amendment disallowed federal funds being used by the Department of Justice and its Drug Enforcement Administration to prosecute states that legalized medical marijuana thereby allowing such states to pass laws and regulations in furtherance of their medical marijuana legislation.  It was also clear to all Congressmen, including House members who argued against passage of the Rohrabacher-Farr Amendment, that the amendment prevented the Department of Justice and its Drug Enforcement Administration from spending federal dollars to prosecute medical marijuana dispensaries and medical marijuana patients if they were acting in compliance with their state’s medical marijuana laws and regulations.  Then came Patty Merkamp Stemier from the Appellant Section of the Department of Justice, Criminal Division, who attempted to thwart the intent of Congress and circumvent the law.  Stemier had already shown herself to be less than honest.

Stemier previously wrote an internal Department of Justice memorandum containing “informal talking points,” which she intentionally leaked to House members prior to their voting on the Rohrabacher-Farr Amendment.  Stemier figured certain members of Congress who were willing to protect the usage of medical marijuana in states that legalized it might have second thoughts about passing the Rohrabacher-Farr Amendment if they believed it would also allow marijuana to be used for purely recreational purposes, so Stemier wrote the Rohrabacher-Farr Amendment could “in effect, limit or possibly eliminate the [Justice] Department’s ability to enforce federal law in recreational marijuana cases as well.”  Stemier later admitted her talking points were “intended to discourage passage of the rider” but she then claimed her words did not reflect the Department of Justice’s “current thinking.”  See Angell, Tom, “Leaked Document Shows Why Feds Believe They Can Ignore Medical Marijuana Law,” Trending High, August 5, 2015, marijuana.com/news/2015/08/exclusive-justice-department-admits-misleading-congress-on-marijuana-vote/.

When Stemier attempted to defeat passage of the Rohrabacher-Farr Amendment, she sought to mislead House members by expanding its scope.  After the Rohrabacher-Farr Amendment became law, Stemier attempted to limit its scope.  On February 27, 2015, Stemier wrote another internal Department of Justice memorandum to all federal prosecutors in which she said,

“. . . the Department’s position is that Section 538 does not bar the use of funds to enforce the [Controlled Substances Act’s] criminal prohibitions or to take civil enforcement and forfeiture actions against private individuals or entities. . .”  See Gammon, Robert, “Depart of Justice Says Medical Marijuana Law Doesn’t Impact Prosecutions,” Scribd,  scribd.com/doc/273620932/Depart-of-Justice-Says-Medical-Marijuana-Law-Doesn-t-Impact-Prosecutions.

The Department of Justice’s absurd interpretation of the Rohrabacher-Farr Amendment was ridiculed by Judge Breyer and overruled in the case of U.S. v. MAMM, after which the Department of Justice quickly abandoned its appeal.

The Department of Justice’s position limiting the reach of the Rohrabacher-Farr Amendment to ban proceeding against the states but not against private individuals and entities was mocked by United States District Judge Charles R. Breyer in the case of United States of America v. Marin Alliance for Medical Marijuana, 139 F.Supp.3d 1039 (N.D. Cal. 2015) (“U.S. v. MAMM”), where Judge Breyer considered whether enforcement by the Department of Justice of a prior injunction against a private provider of medical marijuana “must be consistent with the new directive of Congress in Section 538 . . . which prohibits the Department of Justice from expending any funds in connection with the enforcement of any law that interferes with California’s ability to implement [its] own State law[] that authorize[s] the use, distribution, possession, or cultivation of medical marijuana.”  U.S. v. MAMM, 139 F.Supp.3d at 1040.

Judge Breyer’s decision states in pertinent part,

“. . . the Government initiated a forfeiture action against the property on which [Marin Alliance for Medical Marijuana (MAMM)] operated. . . . The forfeiture complaint cited this Court’s permanent injunction and MAMM’s violation of the [Controlled Substances Act] given that it was operating a medical marijuana dispensary. . . .

“Then the legal and factual circumstances changed.  Section 538 . . . which has now been extended until December 11, 2015 . . . .

* * * *

“The plain reading of the text of Section 538 forbids the Department of Justice from enforcing this injunction against MAMM to the extent that MAMM operates in compliance with California law.

* * * *

“The Government’s contrary reading so tortures the plain meaning of the statute that it must be quoted to ensure credible articulation.  Specifically, the Government contends that Section 538 proscribes the use of appropriated funds to ‘prevent’ states from ‘implementing their own’ medical marijuana laws.  Such prohibited uses could include, for example, federal actions that interfered with a state’s promulgation of regulations implementing its statutory provisions, or with its establishment of a state licensing scheme.  However, such uses do not include [Controlled Substances Act] enforcement actions against individuals or private businesses because such actions do not prevent a State from implementing its own laws . . . .

“. . . Where to start?  An initial matter, perhaps, is the contradiction inherent in the Government’s assertion that enjoining any one medical marijuana dispensary . . . does not impede California’s implementation of its medical marijuana laws. . . .

“. . . [T]his drop-in-the-bucket argument is at odds with fundamental notions of the rule of law.  It has never been a legal principle that an otherwise impermissible government intrusion can be countenanced because any one defendant is a small piece of the legal landscape. . . . Section 538 takes as a given that States implement their medical marijuana laws in the ways they see fit. . . . .

“. . . . To ‘implement,’ of course, means to ‘carry out, accomplish, to give practical effect to and ensure of actual fulfillment by concrete measures.’ Merriam-Webster Dictionary (2015).  It defies language and logic for the Government to argue that it does not ‘prevent’ California from ‘implementing’ its medical marijuana laws by shutting down these same heavily-regulated medical marijuana dispensaries; whether it shuts down one, some, or all, the difference is of degree, not of kind. . . .

“. . . . [I]t comes as no surprise to the Court that the legislative history of Section 538 points in only one direction:  away from the counterintuitive and opportunistic meaning that the [Department of Justice] seeks to ascribe to it now.  Without exception, it appears that both the supporters and opponents of Section 538 in Congress at least agreed that the words mean what they appear to mean. . . .

“. . . . Even those who argued against the amendment agreed with the proponents’ interpretation of their amendment.

* * * *

“. . . . Having no substantive response or evidence, the Government simply asserts that it ‘need not delve into the legislative history here’ because the meaning of the statute is clearly in its favor.  The Court disagrees.”

United States District Judge Charles R. Breyer.  Source Americans For Safe Access.

After being shot down by Judge Breyer, the Department of Justice appealed his decision to the United States Court of Appeals for the Ninth Circuit, but then voluntarily dismissed its appeal on April 12, 2016.  At some point the Government’s frivolous hounding of this particular California medical marijuana dispensary needed to stop.

Just when it appeared the Department of Justice had given up going after medical marijuana in states where it had been legalized, along came Trump and Sessions.  Fortunately, nothing Trump or Sessions can do without an act of Congress will legally affect PharmaXtracts’ marketing CBD extracted from hemp legally grown in conformance with the 2014 Farm Bill.  Because PharmaXtracts’ CBD is not made from marijuana as that term is defined by 21 U.S.C. §16 which definition has been modified by the exemption of hemp which is defined in 7 U.S.C. §5940(b)(2), and PharmaXtracts' CBD's manufacture, distribution, and use does not violate any federal law.  But there are larger constitutional questions which present themselves as the Department of Justice and its Drug Enforcement Agency have attempted to creatively exceed their authority to target medical marijuana and CBD.

The Drug Enforcement Administration gave up its disingenuous attempt to separately place hemp extracts into Schedule I by claiming its placement of cannabinoids into Schedule I needed “clarification.”  

Following Trump’s election on November 8, 2016, the Department of Justice was emboldened to violate the Ninth Circuit’s ruling in Hemp II by skipping the required hearings and findings of fact needed before it could placed a new substance into one of the five schedules of controlled substances listed in 21 U.S.C. §812.  On December 14, 2016, the Drug Enforcement Administration declared by publication in the Federal Register a Final Rule creating a new Controlled Substances Code Number for “Marihuana Extract” (still using the archaic spelling for marijuana) and tetrahydrocannabinols “[m]eaning an extract containing one or more cannabinoids that has been derived from any plant of the genus Cannabis.”  According to the Final Rule, “Extracts of marihuana will continue to be treated as Schedule I controlled substances.”  Notwithstanding the DEA’s use of the words, “continue to be treated,” the DEA’s published Final Rule was illegal because it was arbitrarily and unilaterally declared without following proper procedures as the DEA sought to ban CBD by establishing Schedule I drug code 7350 for cannabinoids while simply declaring CBD would become a Schedule I drug effective January 13, 2017.  See Federal Register, Vol. 81, No. 240, Dec. 14, 2016, p. 90194.  Once again, the DEA was attempting to usurp Congressional authority.

CBD providers and doctors were outraged, and the Hemp Industries Association in Summerland, California, challenged the DEA’s authority to change the legal status of CBD and filed another lawsuit after Eric Steenstra, the former Executive Director of the Hemp Industries Association issued the following statement,

 “The ruling is based on an incorrect and incomplete understanding of how CBD is derived from the cannabis plant . . .  While CBD may be derived from forms of cannabis that contain high amounts of THC . . . CBD may also be produced from industrial hemp plants that meet the legal standards of less than 0.3 percent THC by dry weight, and which may be cultivated in 32 states in the U.S. per Section 7606 of the Farm Bill, the Legitimacy of Industrial Hemp Research amendment. . . . Cannabidiol is not listed on the federal schedule of controlled substances, and the DEA has no authority whatsoever to impede the production, processing or sale of hemp products, including CBD products, grown under the Farm Bill.”

Eric Steenstra, former Executive Director of the Hemp Industries Association.  Photo credit thehia.org

The DEA quickly backed down, and on March 14, 2017, the Department of Justice Drug Enforcement Administration Diversion Control issued a “Clarification of the New Drug Code (7350) for Marijuana Extract” which stated in pertinent part,

“The new drug code (7350) established in the Final Rule does not include materials or products that are excluded from the definition of marijuana set forth in the Controlled Substances Act (CSA).

“ The new drug code includes only those extracts that fall within the CSA definition of marijuana.

“If a product consisted solely of parts of the cannabis plant excluded from the CSA definition of marijuana, such product would not be included in the new drug code (7350) or in the drug code for marijuana (7360).

* * * *

“Because recent public inquiries that DEA has received following the publication of the Final Rule suggest there may be some misunderstanding about the source of cannabinoids in the cannabis plant, we also note the following botanical considerations.  As the scientific literature indicates, cannabinoids, such as tetrahydrocannabinols (THC), cannabinols (CBN) and cannabidiols (CBD), are found in the parts of the cannabis plant that fall within the CSA definition of marijuana, such as the flowering tops, resin, and leaves.  According to the scientific literature, cannabinoids are not found in the parts of the cannabis plant that are excluded from the CSA definition of marijuana, except for trace amounts (typically, only parts per million) that may be found where small quantities of resin adhere to the surface of seeds and mature stalk.  Thus, based on the scientific literature, it is not practical to produce extracts that contain more than trace amounts of cannabinoids using only the parts of the cannabis plant that are excluded from the CSA definition of marijuana, such as oil from the seeds.  The industrial processes used to clean cannabis seeds and produce seed oil would likely further diminish any trace amounts of cannabinoids that end up in the finished product.  However, as indicated above, if a product, such as oil from cannabis seeds, consisted solely of parts of the cannabis plant excluded from the CSA definition of marijuana, such product would not be included in the new drug code (7350) or in the drug code for marijuana (7360), even if it contained trace amounts of cannabinoids.”

The DEA’s clarification entirely ignored the definition of hemp provided in the 2014 Farm Bill which does not solely apply to mature Cannabis stalks or seeds but to any part of the Cannabis plant where the THC content is at or below 0.3 percent by weight.

The scientific literature the DEA cited does not support the DEA’s position “cannabinoids are not found in the parts of the cannabis plant that are excluded from the CSA definition of marijuana.

The “scientific literature” cited by the DEA in its March 14, 2017 Clarification of the New Drug Code (7350) for Marijuana Extract in support of its statement, “According to the scientific literature, cannabinoids are not found in the parts of the cannabis plant that are excluded from the CSA definition of marijuana, except for trace amounts (typically, only parts per million) that may be found where small quantities of resin adhere to the surface of seeds and mature stalk” is unpersuasive and disingenuous.  In other words, the DEA lied.

The DEA cites two scientific studies.  The first was published by two German researchers, H. Molleken and H. Hussman, in the Journal of the International Hemp Association, Vol. 4, No. 2, December 1997, Pages 73-79, which involved looking at the cannabinoids content in mature, shelled hemp seeds from hemp plants grown in the European Union and Eastern Europe in 1997.  See http://www.internationalhempassociation.org/jiha/jiha4201.html.

Every young man finding himself down to “stems and seeds” quickly learns there is no getting high from smoking the pulp from within mature Cannabis seeds.  Molleken and Hussman could have saved themselves the trouble, and their research has no applicability to modern CBD production techniques as hemp has now been hybrid to produce as much CBD as possible in its stalks, flowers, and other parts of the hemp plant with a THC level not exceeding 0.3 percent.  Molleken and Hussman did not measure the CBD content within the mature stalks of the Cannabis plant.  Molleken and Hussman did not measure the CBD which can now be extracted from the hybrid hemp now being grown in the United States for the sole purpose of producing CBD as their study is now more than 20 years old.

The second scientific study cited by the DEA was published by four University of Mississippi researchers, Samir, A. Ross, Zlatko Mehmedic, Timothy P. Murphy, and Mahmoud A. ElSohly (Ross, et al.), in the Journal of Analytical Toxicology, Volume 24, Issue 8, November 2000, Pages 715–717, which compared the THC content within the seeds of Cannabis grown to produce recreational marijuana and the seeds of Cannabis grown to produce hemp.  As expected, although extremely slight, there was more THC found in the seeds from which recreational marijuana was grown than in the seeds from which hemp was grown.  The study’s conclusion admitted the results might have been skewed by “the result of physical interaction with the plant leaves during the processing.”  See academic.oup.com/jat/article/24/8/715/817709/GC-MS-Analysis-of-the-Total-9-THC-Content-of-Both.

As irrelevant and useless as was the Molleken and Hussman study in supporting the DEA’s contention that “cannabinoids are only found in trace amounts in those portions of the cannabis plant excluded from the federal definition of marijuana,” the Ross, et al. study was even more irrelevant because the Ross, et al. study only measured the Delta-9 THC content and not the CBD content within the seeds.

In sum, neither the Molleken and Hussman study nor the Ross, et al. study sought to measure the CBD content of mature Cannabis stems and flowers, especially the mature stems of modern hemp plants hybrid and grown under the 2014 Farm Bill solely for the purpose of producing high CBD content.  The DEA had more than 16 years to conduct its own scientific research between the time the Ross, et al. study was published in December 2000, and the time the DEA published its Clarification of the New Drug Code (7350) for Marijuana Extract on March 14, 2017, and yet those two exceptionally lame, irrelevant studies were all the DEA could come up with to support its untenable claim.  

Based on the irrelevant information contained in the Molleken and Hussman and in the Ross, et al. studies, the Government has seized CBD from health food store shelves based on its unsupported hunch that illegal portions of the Cannabis plant were used in its manufacture.  The Molleken and Hussman study and the Ross, et al. study, even when taken together, fail to establish probable cause for a reasonably prudent person to believe that all CBD found on the shelves of a health food store was manufactured from parts of the Cannabis plant defined as marijuana under federal law especially after the passage of the 2014 Farm Bill which classifies as hemp any portion of the Cannabis plant having a THC content of 0.3 percent or less.  The Government’s position to the contrary could be quickly dispatched by any competent criminal defense attorney who took the time to read the studies upon which the Government’s case relies even without resorting to the definition of hemp set forth in the 2014 Farm Bill.  This explains why the DEA has never sought to criminally prosecute any dealer in CBD based on its theory that the CBD must have been made from the outlawed leaves and flowering parts of the Cannabis plant, and the DEA is not prepared to address hemp grown in compliance with the 2014 Farm Bill.

The DEA’s second line of attack, that the CBD must have been made from illegal resin, is doomed to fail because of the vagueness within the statute and because of the lack of any proof.

In discussing trace amounts of cannabinoids, footnote 5 to the DEA’s March 14, 2017 Clarification of the New Drug Code (7350) for Marijuana Extract states in pertinent part,

“Nor would such a product be included under drug code 7370 (tetrahydrocannabinols).  See Hemp Industries Association v. DEA, 357 F.3d 1012 (9th Cir. 2004) (Hemp II).  However, as the Ninth Circuit stated in Hemp II, ‘when Congress excluded from the definition of marijuana “mature stalks of such plant, fiber . . . , [and] oil or cake made from the seeds,”’ it also made an exception to the exception, and included 'resin extracted from' the excepted parts of the plant in the definition of marijuana, despite the stalks and seed exception.  Id. at 1018.”  
In footnote 5, the DEA was setting the stage for another Government argument, this time that if an extract of cannabinoids was derived from extracted resin from any part of the Cannabis plant (including the parts excluded from the CSA definition of marijuana) during any time during its manufacturing process, then such an extract would be included in the CSA’s definition of marijuana.

By the inclusion of Footnote 5, the DEA suggested it can confiscate CBD based on its suspicion that when the CBD was manufactured there was an intermediate, precursor product developed during its manufacturing that the DEA would classify as a “resin extracted from any part of [the cannabis] plant” or “the resin extracted therefrom.”

A “resin” is included within the federal definition of marijuana but not as the federal definition of marijuana has been modified by the 2014 Farm Bill which excludes from the definition of marijuana any portion of the hemp plant with a THC level equal to or less than 0.3 percent.  Resins taken from hemp flowers should be of no account if they originated in a hemp product.

Nevertheless, even by the definition of marijuana found in 21 U.S.C. §16, the definition of a “resin” is not specifically stated, and the question becomes what makes a resin a resin and not “any other compound, manufacture, salt, derivative, mixture, or preparation” or “oil” made from mature Cannabis stalks that are exempted from the federal definition of marijuana.  See 21 U.S.C. §16.

The Government cannot prove a CBD product was made from an intermediate precursor defined as a “resin” rather than an intermediate precursor defined as a “compound,” or as a “salt,” or as a “derivative,” or as a “mixture,” or as a “preparation” or as an “oil” because the word “resin” is not adequately defined.  In this regard, 21 U.S.C. §16 is void for vagueness because it violates the Due Process clauses of the Fourteenth Amendments because the statute fails to state explicitly what it mandates, and 21 U.S.C. §16 does not define its potentially vague terms.

As stated by United States Supreme Court Justice George Sutherland in Connally v. General Construction Co., 269 U.S. 385, 391 (1926),

“[T]he terms of a penal statute [...] must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties… and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.”

Justice George Sutherland.  File photo.

The DEA has experimented with both “marijuana adulteration” theories to seize CBD off the shelves of health food stores without any evidence any illegal portion of the Cannabis plant not otherwise defined as hemp under the 2014 Farm Bill was used during its manufacture and without any evidence any illegal resin extracted from legal portions of the Cannabis plant was used as an intermediate precursor during the CBD manufacturing process.  No store owners have been criminally prosecuted.  No store owners have been arrested.  Instead, store owners have been intimidated into accepting the loss and being thankful they were not arrested even though no probable cause ever existed for their arrest.  

The Drug Enforcement Administration mistakenly thought a window of opportunity had been opened to harass CBD providers in North Dakota and Indiana because those two states were not protected by the Rohrabacher-Farr Amendment prior to May 5, 2017.

After the Rohrabacher-Farr Amendment became effective, there was a short window of two months between January 13, 2017, when “cannabinoids that has been derived from any plant of the genus Cannabis” was declared a Schedule I drug by the DEA, and March 14, 2017, when the DEA issued its “clarification.”  During that time, anti-anything-to-do-with-marijuana zealots felt they were permitted to go after CBD in North Dakota, which along with Indiana, was one of two states expected to legalize medical marijuana but left off the list of states named in the Rohrabacher-Farr Amendment.  As it turned out, the uninformed also felt they could go after CBD sellers after March 14, 2017, despite the DEA’s “clarification.”  Using the first of the “marijuana adulteration” theories, the DEA moved forward as if the Government would never need prove (because it had no intention of ever proving) the CBD being sold had been manufactured from Cannabis leaves and flowers (with a THC level over 0.3 percent) rather than Cannabis stalks, a nearly impossible task.  Like a poker player without so much as a pair of deuces, the DEA has been reduced to running a series of bluffs.

On Nov. 8, 2016, Arkansas, Florida, and Montana passed laws legalizing medical marijuana.  North Dakotans also approved a medical marijuana initiative by a 27.58 percent margin, 63.79 percent for legalization verses 36.21 percent against legalization which, according to the North Dakota Constitution, would have made medical marijuana legal in North Dakota beginning December 8, 2016, but according to BallotPedia, on January 8, 2017, “The North Dakota Senate unanimously approved legislation that would delay the implementation of the measure . . .  Specifically, the bill would keep the North Dakota Department of Health from issuing applications or licenses for medical marijuana dispensaries until July.”  See “Changes in 2017 to laws governing ballot measures,” Ballotpedia, https://ballotpedia.org/Changes_in_2017_to_laws_governing_ballot_measures.

According to the August 17, 2017 edition of the IndyStar, Indiana state legislature Republican Jim Lucas, “said he is still working out the details, but has ‘every intention of introducing a bill that legalizes medical marijuana.’”  See Cook, Tony, “Medical marijuana bill on its way to Indiana legislature – and a Republican is behind it,” Indystar, August 17, 2017.

Indiana Republican Caucus Assistant Majority Whip Jim Lucus.  File photo.

One of the United States Senators from North Dakota, Republican John Hoeven, said North Dakota was not included because medical marijuana would not have become available for another 12 to 18 months after it was considered by the Senate Appropriations subcommittee of which he was a member.  “The provision is included in the Commerce, Justice, Science (CJS) funding bill, which was drafted and approved by the CJS appropriations subcommittee in April 2016, prior to North Dakota’s approval of medical marijuana usage,” Hoeven said as reported in a May 12, 2017 HPR article.  Hagen, C.S., “Federal Loophole in Medical Marijuana Laws, Police Target Bismarck Stores,” HPR, May 12, 2017, hpr1.com/index.php/feature/news/federal-loophole-in-medical-marijuana-laws-police-target-bismarck-stores/

The temporary spending bill Trump signed May 5, 2017, additionally included in Section 537 the states of Arkansas, Georgia, Louisiana, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Texas, Virginia, Wyoming, and the territories of Guam and Puerto, bringing the total number of states the Department of Justice has no funds to prosecute for medical marijuana up to 44.

The harassment of North Dakota CBD distributors turned out to be a fiasco and an embarrassing moment for the Drug Enforcement Administration.
 
According to the May 12, 2017 issue of the Bismarck Tribune, on May 11, 2017, a week after Trump added his signing statement to the temporary spending bill, three narcotics detectives from the Bismarck Police Department purchased bottles of CBD hemp oil from Terry's Health Products and BisMan Community Food Co-op, and “some of the products tested positive for CBD” resulting in the Bismarck Police seizing those bottles from the stores.  Bismark Police Sergeant Mike Bolme “said the decision to pursue the store came after a tip from the attorney general's office.”  The owners of the two health food stores were not prosecuted but merely needed to turn their supply of CBD products over to the police who say they destroyed them.  See Grueskin, Caroline, “Bismarck Police Cracks down on CBD hemp oil,” Bismarck Tribune, May 12, 2017., bismarcktribune.com/news/local/crime-and-courts/bismarck-police-cracks-down-on-cbd-hemp-oil/article_2fd4dbcc-4ba7-5f5e-ac66-e6e882c1175b.html

The police apparently had not been informed of the DEA’s clarification and thought CBD had been declared a Schedule I drug in all instances for all time.  The police also appear to have been clueless about the passage of the 2014 Farm Bill.  North Dakota Attorney General Wayne Stenehjem's office initiated the “enforcement” inevitably after receiving a complaint from the retired Director of the North Dakota State Board of Pharmacy, Howard C. Anderson Jr., who beginning in 2013 was elected to the North Dakota State Senate.  Anderson lists himself as a member of the Methodist Church and as a Republican Senator in the North Dakota Legislature.  As a state senator, Anderson proposed a bill regulating existing needle exchange programs as an “emergency measure” to aid in the prevention of blood-borne diseases, but which specifically provided that no state agency could provide funds “to purchase or otherwise acquire hypodermic syringes, needles, or injection supplies.”  See Sixty-fifth Legislative Assembly of North Dakota, Senate Bill No. 2320, 17.0986.010000.

After the health food stores were raided, Anderson bragged to the press, “CBD hemp oil is illegal in North Dakota and has been since 1903.  (It’s not.)  Despite what other media sources have reported, most people in the state were under the assumption that because CBD had a THC level less than 0.3, it fell under industrial hemp regulations and was permitted to be sold.  That’s why they thought they could have a die-all with 0.3 percent or less.  Now they’ve learned that’s not true. . . . [The DEA] didn’t really change anything, they just interpreted it to make it more clear.  It’s always been an illegal substance. . . .  Of course, if you are going to sell an illegal substance, you probably shouldn't advertise it on TV.  I understand they were selling it for a while, and that they thought it was okay.”  See HPR, May 12, 2017, supra.

North Dakota Republican State Senator Howard C. Anderson Jr. who bears a striking resemblance to Attorney General Jeff Sessions.  Photo credit North Dakota legislature.

Since there is no law in North Dakota that specifically makes CBD illegal, what happened in North Dakota was the over-zealous blind leading the over-zealous blind.  North Dakota’s definition of marijuana does not include the mature stalks of the Cannabis plant and any derivative of the mature stalks.  See 2013 North Dakota Century Code §19-03.1-01(18).  The DEA explained its involvement using one of the “marijuana adulteration” theories.  The June 10, 2017 issue of the Bismarck Tribune reported:

“[A]ccording to a spokesman from the [Drug Enforcement Agency,] the problem with CBD isn't the substance itself.  Rather, it's that most of the available product comes from ‘clandestine manufacturers,’ who are pretending their product comes from the legal, mature stalks of hemp plants, but are in fact making their product from plants the agency considers to be marijuana, not hemp.  The difference between hemp and marijuana is the content of the psychoactive drug THC. ‘The problem is, how do you know when you get the final product, where it originated from?’ said Melvin Patterson, spokesman for the DEA.”  See Grueskin, Caroline, and Jessica Holdman, “Legal haze surrounds budding hemp industry,” Bismarck Tribune, June 10, 2017, bismarcktribune.com/news/state-and-regional/legal-haze-surrounds-budding-hemp-industry/article_8e7f20e2-ef50-592f-8a7a-84f45a415eae.html

Patterson admitted he had no way of knowing from what part of the Cannabis plant from which the CBD was extracted, and neither the Bismarck police nor the DEA could have established probable cause to seize the CBD products if the store owners had pressed the issue.  Neither store owner was arrested because no probable cause existed for their arrest.  The police refused to refer to the incident as a “raid.”  As reported by HPR on May 12, 2017,

“‘We got a report from the attorney general’s office that there were maybe two businesses in Bismarck selling CBD products,’ Bismarck Police Sgt. Mark Buschena said. ‘This was not a raid.  We sent officers to these businesses, identified themselves as police officers, bought the products from the shelf, and then they were sent for testing.’”  See HPR, May 12, 2017, supra.

Bismark Police Sergeant Mark Buschena who also bears a resemblance to Attorney General Jeff Sessions.  Photo credit Bismark Police Department.

No explanation was ever given how the United States Attorney or the Burleigh County State’s Attorney, who have the burden of proving every element of their case, were going to prove the confiscated CBD was extracted from Cannabis flowers and leaves (having a THC level greater than 0.3 percent) and not from mature Cannabis stalks.

PharmaXtracts’ CBD is made from portions of the hemp plant with a THC level less than 0.3 percent by dry weight.  These hemp plants are legally grown in California and Nevada pursuant to pilot program licenses issued by the California and Nevada departments of agriculture, and this hemp is as defined, grown, and marketed in conformance with the Legitimacy of Industrial Hemp Research section of the Agriculture Act of 2014, 7 U.S.C. §5940.  The California and Nevada pilot programs have been lawfully established pursuant to  7 U.S.C. §5940 in conformance with California Food and Agricultural Code, Division 24, §81001, et seq., and Nevada Revised Statutes §557.010, et seq.  California’s and Nevada’s respective Departments of Agriculture have certified, registered, and regulated the growing of PharmaXtracts' hemp in conformance with federal and state laws, rules, and regulations.

Federal law, in particular, 7 U.S.C. §5940(b)(1), encourages the study of marketing industrial hemp products pursuant to these pilot programs, and by the rights and protections established by the Legitimacy of Industrial Hemp Research, 7 U.S.C. §5940, and pursuant to the guarantees of those rights and protections by the Full Faith and Credit Clause, Article VI, Section 1 of the Constitution, the Supremacy Clause, Article VI, Section 2 of the Constitution, and the Equal Protection Clause, Section 1 of the Fourteenth Amendment, PharmaXtracts markets its CBD Products to all 50 States, the District of Columbia, and all United States Territories.. 

The legality of PharmaXtracts’s CBD products should be unquestioned.

PharmaXtracts ability to market CBD products nationwide has been firmly established.

Unlike its competitors, PharmaXtracts’ CBD products do not contain THC in any significant amount.  PharmaXtracts' motto is "HIGHEST QUALITY, 100% THC FREE," and PharmaXtracts makes every attempt to meet this standard through its proprietary process developed through years of research.  The plain language of 21 U.S.C. §16 and the judicial rulings interpreting 21 U.S.C. § 16 defining “marijuana” and 7 U.S.C. §5940(b)(2) defining “hemp” firmly establish PharmaXtracts’ CBD products fall outside the DEA’s ability to control without a separate act of Congress, and with each passing year, Congress is warming up to the inevitable legalization of Cannabis in all its forms for all purposes due to the overwhelming demand of the American people as shown by the Quinnipiac University poll previously cited.

Ninety-four percent of all Americans falling on one side of a political issue, in this case their approval of allowing patients to use medical marijuana if their doctor prescribes it, is unprecedented.  Not since the Japanese attack on Pearl Harbor has the American public been so united than they are about the government allowing Cannabis and its derivatives being studied and/or used in the treatment of medical conditions.  Nevertheless, some politicians and government bureaucrats still cling to old fashioned and discredited beliefs, and the United States government continues to stifle research into the usefulness of Cannabis extracts to treat medical conditions.  The government has patented various medical uses of CBD and has held onto said patent for 18 years without releasing it into the public domain.  In addition, in 2016, the DEA supported its untenable position that marijuana should continue to be listed as a Schedule I drug while at the same time it refused to allow Cannabis to be tested for medical use with over 25 applications from various universities to engage in such testing having been rejected.  See Editor, “Many are Wondering Why Jeff Sessions is Blocking Marijuana Research,” MarijuanaStocks.com, August 29, 2017,     marijuanastocks.com/many-are-wondering-why-jeff-sessions-is-blocking-marijuana-research/.

PharmaXtracts cannot make any claim and does not make any claim its CBD products are intended to diagnose, treat, cure, or prevent any disease.  Nevertheless, many of PharmaXtracts’ customers disagree and, fortunately, PharmaXtracts’ CBD products are legal to sell, ship to, and be used in all 50 states, the District of Columbia, and all U.S. territories in compliance with federal, state, district, and territorial laws.

Congress, the President of the United States, the Department of Justice, and the DOJ’s Drug Enforcement Administration are acting contrary to the overwhelming will of the American people.  The DEA has occasionally targeted stores selling CBD based on mere hunches a Cannabis leaf or a Cannabis flowering part made its way into the CBD manufacturing process.  All such raids were unconstitutional because they were made without probable cause in violation of the Fourth Amendment.  Consuming valuable government resources to target sellers of CBD under a “marijuana adulteration” theory or pretext is especially perplexing since the end CBD product contains THC at a level not exceeding 0.3 percent by weight (as claimed by some of PharmaXtracts’ competitors with respect to their “hemp oil” or “CBD oil”), and Cannabis with a THC level below 0.3 percent is considered hemp which as of July 11, 2017, can legally be grown in 34 states following the passage of the 2014 Farm Bill.  See “State Industrial Hemp Statutes,” National Conference of State Legislatures, July 11, 2017, ncsl.org/research/agriculture-and-rural-development/state-industrial-hemp-statutes.aspx.  In addition, following passage of the 2014 Farm Bill, it would not matter if a Cannabis leaf or flowering part made its way into the mix so long as the leaf or flowering part had a THC content not exceeding 0.3 percent by weight.

The public is overwhelmingly in favor of allowing patients to use medical marijuana if recommended by their doctor.  It only follows the public should be overwhelmingly in favor of patients using CBD if recommended by their doctor even though CBD is a derivative of the Cannabis plant.

On a ledge a hundred stories high, the War on Drugs is hanging on by its fingernails as it applies to Cannabis, and it only survives because of old fashioned beliefs shaped by years of false propaganda and thousands of government bureaucrats attempting to justify their jobs.  The opioid epidemic is one thing; it is killing people.  The use of CBD is quite another; it is helping people.  The landscape has changed.  President Donald Trump, like President Bill Clinton and President Barack Obama before him, is not being responsive to his base or acting in conformance with the will of a vast majority of the American people.  The American people disapprove of an archaic and scientifically unsound federal law being used as a vehicle to target people who are using marijuana or a derivative of Cannabis to treat their medical conditions.  The time is counting down to when the will of the American public will finally prevail.

Go to CBD 103.

PharmaXtracts sells the finest, purest CBD products at the lowest prices you will find anywhere.  With over three decades of combined experience in the industry, PharmaXtracts is a band of brothers who decided the CBD market needed a serious intervention.  No longer could we stand by and let false information be perpetuated and insignificant dosages be taken by people who suffer from serious ailments.  It was time to bring clarity to a once very shady world.*

Note:   PharmaXtracts claims no copyright for the pictures and photographs used in this post but considers them within the public domain.  PharmaXtracts claims a copyright for the text used herein.  © 2017 PharmaXtracts

*These statements 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.  Not for sale to those under the age of 18 years.  Keep PharmaXtracts CBD products out of the reach of children.