The Controlled Substances Act (CSA) is an act that establishes a way for the federal government to control food ingredients and drugs that are considered unsafe or dangerous for human or animal consumption. The CSA utilizes a scheduling system to classify substances based on the inherent risk involved in their use. Schedule one is reserved for substances that possess “no currently accepted medical use and a high potential for abuse.” Marijuana is a schedule one controlled substance, along with heroin and lysergic acid diethylamide (LSD). For comparison, cocaine and methamphetamine are both schedule two controlled substances.

Under 21 USC 802(d) (16), the Controlled Substances Act clearly designates marijuana, defined as “any part of the plant cannabis sativa L.,” as a schedule one controlled substance. Furthermore, it separately designates tetrahydrocannabinol (THC) as a schedule one controlled substance. This is taken to presume that the separate designation of THC as a controlled substance in addition to marijuana refers to any and all synthetic THC but not naturally occurring THC which is not produced by marijuana as defined in the act.

Because THC is listed as a controlled substance in addition to marijuana (which obviously contains naturally-occurring THC) it is presumed that naturally-occurring THC not found in marijuana (i.e., THC found in cannabis plants that do not fall under the CSA definition of marijuana, namely, hemp) cannot be regulated by the DEA because non-psychoactive hemp is explicitly not a controlled substance.

This interpretation was upheld on February 6, 2004 in the final decision of HIA v. DEA.

It was also reiterated by the Drug Enforcement Administration (DEA) in an internal directive issued on May 22, 2018. This directive unambiguously states that the “mere presence of cannabinoids” does not constitute a controlled substance and that instead, the DEA bases its scope of activity regarding cannabinoids on “whether the substance falls within the CSA definition of marijuana.”

The DEA cannot add substances to the CSA, and it can only regulate substances that fall within the CSA.

The Omnibus Appropriations Act of 2016 is the 2016 iteration of the funding bill of the federal government. This bill clarifies for which uses federal dollars may be allocated. Section 763 of the 2016 funding bill prohibits the federal government from spending federal dollars “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.”

This means that the federal government is not allowed to spend a single cent on prosecuting individuals participating in activities protected under section 7606 of the Farm Bill.

Taken together, these three pieces of legislation along with the DEA’s own internal directive form a very unambiguous means of legal protection for individuals and entities participating in the hemp industry that was established with the Farm Bill of 2014.