In 2004, the 9th US Circuit Court of Appeals ruled that the naturally occurring Cannabinoids contained in non psychoactive varieties of Cannabis (industrial Hemp) are outside of the regulatory power of the DEA after the DEA attempted to enforce a zero tolerance policy on the trace amounts of THC contained in Hemp products being sold at the time, such as nutritional Hemp seed oil. One can view these trace amount of THC being very similar to the trace amount of morphine and codeine found within poppy seeds used for baked goods. This zero tolerance policy was challenged by the HIA (Hemp Industries Association) who won the ruling in 2004, which was subsequently left unchallenged by the Bush administration and DEA.
Industrial Hemp is defined internationally as having .3% THC or less by dry weight, so that has become a defining line between what is legally considered Hemp and what is considered “Marijuana” under U.S. law after the 9th circuit court of appeals ruling that placed the Cannabinoids contained within Hemp into a separate category than those within strains of Marijuana with higher than .3% THC content.
Furthermore, Cannabidiol itself nor any of the other 80 some Cannabinoids derived from the Cannabis plant are scheduled substances in the United States, only THC and a few synthetic Cannabinoids are actually listed as scheduled substances. If CBD is derived from Marijuana, it is illegal as are all constituents of the plant. When derived from imported commercial hemp, CBD is legal as the Cannabinoids contained in non-psychoactive strains of Cannabis are exempt from regulation in the US and around 40 other countries when used in Hemp finishing products. Some countries do in fact schedule Cannabidiol, such as Canada, where CBD is listed as a Schedule 2 substance. Legal status of Cannabidiol can been seen on the wiki page here.
Strains such as Charlotte’s Web, that started out being classified as “marijuana” strains, have now been able to be reclassified as Hemp strains, due to the meeting of the .3% THC threshold. This is an important designation, as breeders are now breeding Cannabis strains down to acceptable THC levels, while still offering a plant that carries all of the other combinations of naturally occurring Cannabinoids, which provide a synergistic effect when taken together along with the plants given Terpenoid and Flavanoid profiles. This has tremendous implications for people that do not need high THC levels in their Marijuana oil and extracts as it offers a legal avenue to procure CBD Oil for Sale in all 50 states. The 2014 Farm Bill took further steps to distinctly define hemp in the U.S. to allow for early pilot farms to develope and the pending Industrial Hemp Act will sever hemp’s connection with marijuana under the Controlled Substances Act once and for all.
On March 28, 2003, the Hemp Industries Association, several hemp food and body care companies and the Organic Consumers Association filed an Urgent Motion for Stay in the 9th Circuit Court of Appeals. The industry was optimistic that the Court would grant the Stay, given previous Court action on the issue. In the meantime, the law of the land affirming hemp food’s legality remained in effect.
On February 6, 2004 the Ninth Circuit Court of Appeals issued a unanimous decision in favor of the HIA in which Judge Betty Fletcher wrote, “[T]hey (DEA) cannot regulate naturally-occurring THC not contained within or derived from marijuana-i.e. non-psychoactive hemp is not included in Schedule I. The DEA has no authority to regulate drugs that are not scheduled, and it has not followed procedures required to schedule a substance. The DEA’s definition of “THC” contravenes the unambiguously expressed intent of Congress in the Controlled Substances Act (CSA) and cannot be upheld”. On September 28, 2004 the HIA claimed victory after DEA declined to appeal to the Supreme Court of the United States the ruling from the Ninth Circuit Court of Appeals protecting the sale of hemp-containing foods. Industrial hemp remains legal for import and sale in the U.S., but U.S. farmers still are not permitted to grow it.
The summary “Agency Issues Legislative Rule in Violation of Administrative Procedures Act” by Harrison M. Pittman of the National Agricultural Law Center is an excellent overview of the Ninth Circuit Court of Appeals decision in HIA v. DEA.