Why stores aren't pulling CBD products amid new DEA classification

Cannabidiol, also known as CBD, is a compound and extract derived from the cannabis plant.

It's a non-psychoactive compound that many use to treat a variety of medical conditions from epilepsy to chronic pain, like fibromyalgia.

On December 14, 2016, the Drug Enforcement Administration changed the way CBD is scheduled and tracked. CBD is now included as a Schedule 1 drug, along with heroin and methamphetamine, making the compound illegal from the DEA's point of view.

There is a major problem with the DEA's new rules, Congress has already passed laws that contradict that scheduling.

"What the DEA said is that CBD is a schedule 1 drug, that is different from what Congress says," Rod Kight, an attorney in Asheville, said. "When Congress and an executive agency, like the DEA, come into conflict with what they say, Congress wins. Congress has the authority to make and enact laws that govern us. The DEA is an executive agency that is charged with, like other executive agencies, making sure that people comply with laws."

CBD is legal in a few different situations, mostly according to its point of origin.

Under the Controlled Substances Act, the mature stalk of the cannabis plant can be legally used. Therefore, CBD taken from the stalk is also legal.

The 2014 Farm Bill allows states to enact industrial hemp laws. North Carolina and several other states are either already taking advantage or are in the process. CBD can be extracted from industrial hemp, therefore making it legal, as well.

And finally, industrial hemp can be legally imported from countries where it is also legal.

As long as CBD is created from hemp/cannabis under one of these three scenarios, it's legal, according to Congress.

"So, in other words, the DEA has said CBD is not legal, and certainly it has the authority to do some scheduling, but it can’t say that something is illegal that Congress has expressly said is legal," Kight said.

Lawmakers set a precedent when hemp was defined, which contains less than 0.3 percent of THC, the compound that gets people high.

Therefore, on the federal level, using hemp is OK. Marijuana, or hemp with more than 0.3 percent, is not.

"For us as an industrial hemp distribution company, you know, we have nothing to do with cannabis at all," Brian Bullman, the owner of Carolina Hemp Company, said. "All of the products that we sell are derived from industrial hemp, through industrial hemp programs in various states."

The confusion has led to some stores and pharmacies pulling CBD products from their shelves, hurting local businesses and customers that use the products.

Will Oseroff is the owner and founder of Blue Ridge Hemp Company in Asheville. "We’ve not been affected by anything being illegal," Oseroff says, "but we have been affected by companies saying, 'Well we're not sure what’s going on. It’s not worth it for us to carry your hemp products in our store when we’re selling food mostly. So, unfortunately, were going to have to drop your product.'"

Will's phone was ringing off the hook when the DEA made the ruling back in December.

"A lot of our customers that use our products on a regular basis were terrified," Oseroff continued. "I got more phone calls from just individual customers than stores being like, 'What’s going on? What do I need to do? Do I need to buy $1,000 or $2,000 worth of product to get me through the next year?' And that’s the biggest thing I was worried about. I know I said bottom line, but really it comes down to if we weren’t able to help people out anymore, that would be a big deal."

A case filed in the 9th District in California seeks to clarify or throw out the new rule.

But in the meantime?

"The growers are still growing, manufacturers are still manufacturing, and distributors are still distributing" Bullman said. "Sure enough, you can walk right down to the store and get your CBD product that you need and it will be no different from yesterday, and that’s the beauty of it."

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