Vermont’s hemp laws – like its medical cannabis program – are out-of-step with federal statutes; moreover those statutes are convoluted and complicated. In a recent Cannabist report, the DEA further complicated the issue by doubling down on its position that cannabidiol (CBD) is illegal – an affirmation that the agency should not be at liberty to make.

In their statement, the federal law enforcement agency asserts that CBD products violate two federal laws – the Controlled Substances Act and the Federal Food, Drug, and Cosmetics Act – because some product origins cannot be traced to plants that fall under the federal definition of hemp, and others are derived from cannabis plants that contain more than the 0.3 percent allowable under federal law.

Further, the agency declared that even if the products were sourced from legally-defined hemp, the 2014 federal Farm Bill does not provide protection for commercialization of hemp products; rather it only provides protection for research programs approved by the state.

In Vermont, any individual can register to grow hemp for a $25 fee. However, the application for such approval carries two clauses that clearly state that “cultivation and possession of hemp in Vermont is a violation of the Federal Controlled Substances Act” and inform the signee that they could lose access to federal agriculture benefits, be criminally charged, or forced to forfeit their property if prosecuted and convicted under federal law.

Specifically, the DEA statement took aim at Charlotte’s Web, a hemp extract trademarked by CW Hemp high in CBD and low in THC often used to treat epileptic children.

Joel Stanley CEO of Stanley Brothers, creators of Charlotte’s Web, hit back in an op-ed published by Cannabist, arguing that the 2017 Appropriations Act does protect hemp-oil producers by denying federal funds to “…prohibit the transportation, processing, sale, or use of industrial hemp that is grown or cultivated in accordance with section 7606 of the Agricultural Act of 2014, within or outside the State in which the industrial hemp is grown or cultivated.”

Further, Stanley argues that the CSA does not name “hemp,” “CBD,” or “cannabinoids” and it would take an act of Congress to give the DEA power over those substances – as an enforcement arm of the federal government, the DEA cannot create or clarify laws, therefore have no legal standing to outlaw CBD or its production.

Yet, DEA Form-225, “Application for Registration Under the Controlled Substances Act,” last updated in 2012, includes CBD as a Schedule I narcotic.

Even further muddying the issue is a 2004 Ninth Circuit Court of Appeals decision that found in favor of the Hemp Industries Association and other plaintiffs, ruling that the DEA does not have the authority under the CSA to prohibit otherwise legal products because it might contain traces of THC. The DEA didn’t challenge that ruling.

Joel Bedard, a Vermont agricultural consultant registered with the DEA to research hemp, called the latest pronouncement by the DEA “the start of a larger battle” because they singled out Charlotte’s Web.

“That was probably a bad move on their behalf,” Bedard said in an interview with VTCN. “Now they have just motivated the people that are in the right.”

Bedard explained that because the Federal Farm Bill doesn’t explicitly allow anything more than research, CBD producers are operating in a gray area due to the conflicts within the federal agencies, namely the DEA, FDA, and USDA, and codified statutes such as the CSA and the Ninth Circuit decision.

There are currently three federal proposals sitting in two legislative committees that would legalize CBD products federally (HR.715, S.1374, HR.2273) but only HR.2273 – the bipartisan “Charlotte’s Web Medical Access Act of 2017” – has any significant number of cosponsors.

Vermont’s 2013 state law permits hemp production for “cloth, cordage, fiber, food, fuel, paint, paper, particle board construction materials, plastics, seed, seed meal, seed oil, and certified seed.” However, much like the state’s medical cannabis program, the hemp statute breaks federal law.

A Vermont hemp farmer interviewed for this piece wished to remain unnamed due to the possibility of a DEA crackdown; though admitted that he didn’t believe one was looming. He said he feels protected by the state’s hemp law and anticipated it would be a “big problem” for the agency to shut down hemp operations. He said he and his associates are “taking it for what it is.”

“The statement is not shocking to me, it displays our corrupt, broken system based around Big Ag and Big Pharma.” the farmer said in an email. “The train is rolling on the tracks, they may be able to slow it down, but they are not going to stop it.”

Bedard said that even prior to the 2004 HIA v. DEA case CBD companies were legally able to import CBD from overseas and sell it in the states – which is still the case – but the DEA’s position argues against domestic production.

“The reality of [the Farm Bill] is the verbiage allows for research, but it doesn’t say ‘clinical, scientific research’ they just say ‘research,’ he said. “Research could entail researching the legalities,…the commodity capabilities,…how we can bring money to farmers based upon commodity product, and in order to conclude research like that you have to be able to bring something to market.”

Bedard admits that he worries “about the risks people are taking” due to the “misconception that hemp is legal in all 50 states when it’s never really been that way unless it’s been imported.”

And if total legality was in fact true, regulators in Alaska – where adult-use is permitted – couldn’t raid legal dispensaries and seize CBD products; or the Missouri Attorney General couldn’t sue businesses selling CBD oils; or a tobacco shop owner in North Dakota couldn’t be charged with four felonies for selling it; or a Vermont trucker couldn’t be put out-of-service for 24 hours and have his rig towed for possessing CBD oil.

Until federal law catches up, the CBD waters are still murky; and the DEA, perhaps, is hamstrung by the Appropriations Bill. But until Congress acts definitively, the DEA will still claim that CBD is federally illegal, no matter what laws states enact.