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Denver Lawyers Fight for Marijuana Extract in Suit Against DEA

By William Vogeler, Esq. on April 25, 2017 | Last updated on March 21, 2019

Not all drug wars take place on the streets. Some spill over into the courts.

In the U.S. Ninth Circuit Court of Appeals, a long-fought battle over marijuana is coming back to the forefront. The Hemp Industries Association is challenging a rule by the U.S. Drug Enforcement Administration that outlaws the marijuana derivate "cannabidiol."

It is a feud that dates back so many administrations and generations ago, like the Hatfields and the McCoys, that some have forgotten how it started.

Lip Balm to Oil

The newest fight stems from a ruling by the DEA last year that reclassifies CBDs -- a natural extract from the cannabis plant -- as a controlled substance. The extract is non-psychoactive and is used in products from lip balm to nutritional substances and oil.

The Hemp Industries Association, which claims the ruling undercuts a booming cannabis and hemp market, has filed its brief saying the DEA violated provisions of the Agricultural Act of 2014 and the Controlled Substances Act of 1970.

"We're talking about jobs and the economy and agricultural revival," said attorney Bob Hoban, a Denver-based lawyer who represents HIA in the case.

Colleen Keahey, executive director of the association, said the rule has already done damage to the $688 million hemp industry. "People preemptively started to remove products from retail shelves out of fear," she told the Rolling Stone.

Other Generations

In 2003, HIA sued the DEA for trying to regulate products with THC -- the psychoactive part of marijuana. HIA said the hemp fiber, hemp seed and hemp oil contained trace amounts of natural THC but should be exempt from regulation if not used for human consumption, and the Ninth Circuit agreed.

DEA spokeswoman Barbara Carreno said Congress -- not the DEA -- outlawed marijuana. She said it was classified as an illegal drug in the Controlled Substances Act.

"CBD has always been Schedule 1 because -- and I want to make this real clear because people aren't getting this -- Congress wrote the Controlled Substances Act back in the '70s," she said. "When they wrote the Controlled Substances Act, they put marijuana -- and anything derived from the marijuana plant -- in Schedule 1."

"DEA never put marijuana in Schedule 1," Carreno said. "The law came to us that way from Congress."

The Ninth Circuit has scheduled the government's responsive brief to be filed by May 3.

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