Feds Sow Confusion With Inconsistent Cannabis Policy

Feds Sow Confusion With Inconsistent Cannabis Policy

It’s no secret the federal government has long blocked cannabis research and use, whether for medicinal or recreational purposes. But recent developments have exposed growing inconsistencies in how the federal government treats marijuana and shown that the current approach to cannabis research and products is unsustainable. 

First, the good news: The Drug Enforcement Administration (DEA) recently agreed to permit the sale of Epidiolex, which earlier this year became the first-ever cannabis-derived drug to be approved by the Food and Drug Administration (FDA). Epidiolex treats rare forms of childhood epilepsy and is derived from cannabidiol (CBD), which is a non-intoxicating chemical produced by cannabis plants.

It’s great that the FDA and DEA will allow Epidiolex to be used by kids suffering from epilepsy. Unfortunately, however, the DEA’s approach in this case raises a number of serious public-policy concerns.  

First and foremost, what’s the difference between Epidiolex and other forms of cannabidiol? Physically, there isn’t much difference. The pure CBD extract used in Epidiolex is chemically identical to the CBD extracts used in many other cannabis products that are still banned. Importantly, CBD can be extracted from all forms of the cannabis plant, including varieties that do not contain significant amounts of the intoxicating tetrahydrocannabinol (THC) compound that draws recreational users to marijuana. Varieties of cannabis without significant THC are plentiful and are commonly referred to as “industrial hemp.”

Hemp has been a major agricultural crop in America for centuries. Its strong fibers are used for paper, textiles, rope-making and other applications while hemp seed has also been a food product for much of human history. The difference between hemp and marijuana is mainly a legal one, although the legal standard is being applied inconsistently across the federal government.

The DEA’s interpretation of the federal Controlled Substances Act has long prohibited all forms of cannabis other than the stalk, fibers, and sterilized seeds, regardless of whether THC is present. The DEA claims cannabidiol is a “resin” of the cannabis plant and treats it as a banned “Schedule I” drug, which the DEA says have “a high potential for abuse” and severe “dependence.” Other Schedule I substances include heroin and ecstasy. The DEA actually classifies cocaine and methamphetamines as Schedule II drugs due to some of their valid medical applications.

Despite the DEA’s stance that cannabis is effectively worse than cocaine, in 2014 Congress passed and President Obama signed a federal Farm Bill allowing for the first time in nearly a century the cultivation of hemp through licenses awarded by state departments of agriculture in coordination with the U.S. Department of Agriculture. 

The Farm Bill defines hemp as varieties of the cannabis plant containing less than 0.3 percent THC. Such trace amounts of THC are considered non-intoxicating. It is possible to derive pure CBD extract for medicinal products from these non-intoxicating varieties.

The popular recognition of CBD’s effectiveness in treating convulsive disorders, especially in children, has prompted many policymakers at the state level to adopt a liberal interpretation of the Farm Bill and begin promoting CBD products and treatments. But the DEA and FDA reacted to these liberties with a notice stating that CBD is still a prohibited Schedule I substance under the Controlled Substances Act.

These ongoing differences of interpretation of federal law are creating widespread confusion among policymakers, manufacturers, and consumers. When the FDA approved cannabidiol-based Epidiolex, thus recognizing CBD as an effective treatment for epilepsy despite the Drug Enforcement Administration’s ban, the discrepancies had to be dealt with. 

In an attempt to solve the inconsistency, the DEA tried to split the difference bureaucratically by giving FDA-approved Epidiolex a special classification, not applied to cannabidiol in general. Epidiolex is now a Schedule V substance, meaning the DEA says it has valid medicinal uses and a low potential for abuse even though its primary active ingredient, cannabidiol, is still a Schedule I banned substance.

Allowing the use of Epidiolex is a positive step that inches us closer to the day when the DEA stops tying itself in knots and admits that cannabis has widespread, positive uses and needs to be rescheduled or, better yet, declassified entirely.

Geoffrey Lawrence is a senior policy fellow at Reason Foundation.

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