When it comes to drug legality, it seems like the matter should be straightforward: either a drug is legal, or it isn’t. Sure, you need a prescription to get some of them, but everyone understands that. But if you ask, “Is CBD oil legal?” the honest answer is, “It’s complicated.”
Inevitably, this will lead to a discussion of DEA drug scheduling. In December 2018, when the latest Farm Bill passed, CBD fans were celebrating the fact that the law took their favorite health aid off of Schedule I. But what does that mean?
The Drug Enforcement Administration puts every potentially addictive drug on one of five schedules based on their medical uses and potential for abuse. Schedule I lists those that are highly abusable and have no proven medical use. Not surprisingly, these are legally available only for research.
But to really grasp the DEA’s drug scheduling, you need to know how we got here.
The First War On Drugs
The United Nations first came up with the drug-scheduling idea back in 1961, in a treaty called the Single Convention on Narcotic Drugs. Ever since the League of Nations formed back in the 1920s, drug policy seemed ripe for international cooperation, given that drug consumers are often in different countries from the farmers growing the raw materials.
The Single Convention schedules aren’t exactly the same as the ones the DEA uses. There are only four of them, and Schedule I is actually for the least dangerous drugs. It also didn’t try to schedule every drug in existence but focused on products of opium, coca, and cannabis, as well as drugs deemed to have similar effects to those products.
The treaty didn’t demand that all parties criminalize Schedule IV substances, but it did urge them to restrict it to research purposes. It also required that each government create an agency to manage the growth and distribution of the relevant plants.
The treaty has “cannabis and cannabis resin” on Schedule IV, the resin being the part containing THC, CBD, and other cannabinoids. That placement was not without controversy, but it set the template for all signatories, including the United States.
The Start of DEA Drug Scheduling
Nine years later, the U.S. Congress passed a law to comply with the Single Convention. (No one ever said that the wheels of government turn very fast.) This created the five-schedule system that the DEA still uses. The Controlled Substances Act says that the DEA should decide whether to schedule a drug based on the following criteria:
- Its actual or relative potential for abuse.
- Scientific evidence of its pharmacological effect, if known.
- The state of current scientific knowledge regarding the drug or other substance.
- Its history and current pattern of abuse.
- The scope, duration, and significance of abuse.
- What, if any, risk there is to public health.
- Its psychic or physiological dependence liability.
- Whether the substance is an immediate precursor of a substance already controlled under these guidelines.
Once a drug is set to go on the schedule, the DEA decides what berth it should occupy based on three factors: potential for abuse, medical use, and potential addictiveness. The schedule as it stands looks like this:
Schedule I narcotics are unsafe, highly abusable, and without any accepted medical use. Following the Single Convention, all cannabis resin is on there, with no mention of specific cannabinoids. Other Schedule I substances include heroin, LSD, ecstasy, and quaaludes. If they’re available, it’s for research only.
Schedule II drugs are highly abusable and addictive, but with some medical uses. Examples include cocaine (sometimes used as an anesthetic and for nosebleeds), addictive opioids such as oxycodone, some ADHD drugs, and methamphetamine. Doctors can prescribe them, but without automatic refills.
Schedule III substances are medically useful and with a moderate risk of abuse and safety concerns. The group includes anabolic steroids, testosterone, and fast-acting barbiturates. Doctors can prescribe drugs in Schedules III to V pretty much normally.
Schedule IV compounds are medically useful with a low potential for abuse but mildly addictive. They include most prescription sleeping pills, such as Valium and Ambien, as well as long-acting barbiturates.
Schedule V medicines have the lowest potential for abuse and are mildly addictive. Among them are low-codeine cough syrup, several epilepsy drugs, and some antidiarrheals.
Cannabis Research and Political Developments
In keeping with the Single Convention, the U.S. government created an agency to manage the nation’s legal cannabis supply for use in research. Historically, there wasn’t much: just the harvest of a 1.5-acre lot at the University of Mississippi.
Still, it was enough for scientists to find some very interesting things about cannabis and its properties. By the time the CSA passed, they’d already picked it apart enough to identify THC as the intoxicant and had described several other cannabinoids, including CBD.
Early research suggested that CBD is not intoxicating or addictive and could potentially help with some health problems. At the same time, the only side effects were few and mild.
Even THC appeared to be useful in fighting nausea, glaucoma, and pain. This led to a synthetic form of THC winning FDA approval for severe nausea in the 1980s, as Marinol. Marinol sits on Schedule III of the DEA’s list, after first going on Schedule II. And if you think that’s weird given that all components of cannabis stayed on Schedule I, well, you’re not alone.
Campaigns to get cannabis off of Schedule I are as old as the Controlled Substances Act itself. The first petition was launched in 1972, and members of Congress started getting on the bandwagon in 1981. But every effort failed.
Things were different at the state level. In the 1990s, states started passing laws allowing marijuana for medical use. Political support for rescheduling gained momentum. But the federal government still felt bound by the 1961 treaty. So eventually, Congress created a workaround.
Hemp Good, Marijuana Bad
The 2014 Farm Bill recognized two different strains of the cannabis plant. Psychoactive cannabis kept the Mexican name “marijuana” and remained illegal. But cannabis bred to have no more than a trace amount of THC went by the solidly English name “hemp” and became legal under a special government pilot program.
Since there was no restriction on how much CBD could be in hemp, this made CBD more widely available. Previously you could get it through a medical-marijuana dispensary if your state allowed them. But CBD was developing its own identity apart from weed.
Still, the DEA wouldn’t change its view of cannabis in general. A 2016 petition to have it rescheduled met another rejection letter.
The letter again noted the Single Convention, saying that in order to meet its terms, marijuana had to be on either Schedule I or Schedule II. Why not Schedule II? Well, whatever the states thought, the DEA saw no proof that it had a medical purpose.
“The drug's chemistry is not known and reproducible,” wrote Acting Administrator Chuck Rosenberg; “there are no adequate safety studies; there are no adequate and well-controlled studies proving efficacy; the drug is not accepted by qualified experts; and the scientific evidence is not widely available.”
Critics complained that there was no way to come up with enough evidence with so little legal cannabis available for study. The DEA did agree to release more of it.
Globally, though, research has been marching forward. In 2010, British biotech GW Pharmaceuticals came out with a combination of CBD and THC called Sativex for treating symptoms of muscular sclerosis, which was approved in several countries but is still in limbo in the States.
But GW’s next drug, Epidiolex, was pure CBD. GW put it through all the requisite clinical trials to prove what earlier research had implied: that it helps control epileptic seizures. In 2018, the U.S. Food and Drug Administration approved it for severe childhood epilepsy, meaning the DEA had to figure out where to schedule it.
The DEA put Epidiolex all the way down on Schedule V, meaning it has mild addiction potential but the lowest risk of abuse. Maddeningly for advocates, though, the agency only recognized Epidiolex itself as low-risk; all other CBD remained on Schedule I.
Once again, though, the politicians did an end-run around the regulators. Having established hemp as different from marijuana, Congress put provisions in the 2018 Farm Bill, removing all products of hemp from Schedule I. In fact, it went off the schedule entirely. CBD for everyone!
Not Out Of The Weeds Yet
After all that, here’s the current state of CBD in the DEA drug scheduling. CBD extracted from hemp is unscheduled. CBD created synthetically as Epidiolex is on Schedule V. And CBD extracted from marijuana is on Schedule I.
This is pretty strange considering that the chemical composition of CBD is the same regardless of its source. If the composition were different, it wouldn’t be CBD! But as a practical matter, it’s true that the source can make a difference because of the extraction method.
Full spectrum extraction is a popular method of obtaining CBD, which involves not only drawing out the CBD but other cannabinoids and nutrients in the plant. These other ingredients have their own benefits, but if the plant has THC in it, so could the CBD oil made from it. In fact, a 2017 sampling of CBD oils found that some of them did contain THC.
But still, this hardly seems to justify the extreme differences in scheduling, ranging from “on par with heroin” to “no potential for abuse.” Other extraction methods are available that can include some ingredients while excluding others.
The problem ultimately goes back to the Single Convention, which put “cannabis” on its toughest schedule while ignoring its distinct components. And in fact, some are arguing for changes on that front as well.
The Experts Weigh In
No less than the World Health Organization argued in February 2019 that cannabis should be downgraded in the Single Convention’s system. And it argued for de-scheduling CBD entirely.
“Cannabidiol is found in cannabis and cannabis resin but does not have psychoactive properties and has no potential for abuse and no potential to produce dependence,” WHO’s Expert Committee on Drug Dependence said in its report. “It does not have significant ill-effects. Cannabidiol has been shown to be effective in the management of certain treatment-resistant, childhood-onset epilepsy disorders.”
It remains to be seen whether this will lead to change. The treaty’s drafters took the dangerousness of cannabis as a starting premise and a yardstick for scheduling other drugs, rather than providing standards against which cannabis could be evaluated.
However, if there’s one thing we can learn from this saga is that DEA drug scheduling, like everything else involving the government, is based on politics as much as on rules. Both CBD and cannabis legalization have become global phenomena, so political pressure is mounting to update the laws.
Some countries, including Canada and South Africa, have legalized recreational marijuana despite the Single Convention’s rules. A bill decriminalizing marijuana at the federal level almost went up before the U.S. House in September, but they put it off due to more pressing concerns.
So the fact that CBD remains tied to marijuana in the DEA’s mind might turn out not to be a problem if pot as a whole ends up legal. In the meantime, there will be other products to feed DEA drug scheduling debates. Have you heard about the controversy over scheduling kratom? But therein hangs another tale.