By Natalie Bougenies, Attorney at Harris Bricken

Earlier this 12 months, we mentioned the legality of lesser-known hemp-derived cannabinoids which gave the impression to be gaining success within the U.S. One of those promising cannabinoids is cannabinol (“CBN”). Put merely, CBN is a non-intoxicating cannabinoid that outcomes from the degradation of THC. Because it’s tough, if not unattainable, to develop CBN-rich strains of hemp, a lot of the CBN discovered on the U.S. market is the product of decarboxylation — a chemical response that converts different cannabinoids, comparable to CBD and THC, into CBN. This conversion course of creates some confusion concerning the authorized standing of CBN.

Although CBN is just not expressly listed beneath the federal Controlled Substances Act (the “CSA”), the cannabinoid is a Scheduled I managed substance when derived from marijuana. The CSA defines “marihuana” to imply “all part of the cannabis plant” besides the stalks and non-viable seeds. Because neither the stalks nor non-viable seeds comprise significant quantities of cannabinoids, CBN squarely falls beneath the definition of marijuana, and as a consequence, is a managed substance.

On the opposite hand, CBN derived from hemp is just not a managed substance, and thus, could also be lawful. This is true for 2 causes. First, the Agriculture Improvement Act of 2018 (the “2018 Farm Bill”) expressly eliminated “hemp”  from the CSA definition of marijuana. Second, the 2018 Farm Bill defines “hemp” as “all parts” of the hashish plant, together with cannabinoids, with a THC focus that doesn’t exceed 0.3% on a dry weight foundation. Accordingly, the cannabinoid CBN might be lawful if derived from hemp.

Nevertheless, some commentators argue that CBN, no matter its supply, is a managed substance as a result of it’s produced from the degradation of THC. The proponents of this argument typically depend on two theories.

The first idea is premised on the federal Analogue Act. That statute treats any chemical supposed for human consumption as a Schedule I or II substance, whether it is “substantially similar” to a managed substance listed in Schedule I or II of the CSA. But ought to the Analogue Act apply on this context? The CSA expressly excludes “tetrahydrocannabinols [THC] in hemp” from the record of Schedule I managed substances. Moreover, the results of CBN are usually not “substantially similar” to these of THC. In reality, its results are considerably much less potent. Therefore, CBN that stems from hemp-derived THC shouldn’t be deemed a managed substance analogue in my opinion.

The second argument is predicated on the concept that solely CBN derived from THC “in hemp” is lawful. The reasoning right here is that hint quantities (not more than 0.3%) of THC that naturally happen within the hemp plant are lawful; however THC that’s extracted and remoted from the hemp plant is illegal. This evaluation fails to account for the congressional intent behind the 2018 Farm Bill. The 2018 Farm Bill expressly legalized “derivatives, extracts, [and] cannabinoids,” most of which should undergo a processing part that inevitably will increase the THC focus. Accordingly, it’s affordable to deduce that Congress supposed to legalize processed hemp as effectively.

However, as affordable as this statutory interpretation is, it fails to resolve the place taken by most legislation enforcement teams, which typically to deal with processed hemp containing greater than 0.3% THC as marijuana — even when the THC focus solely will increase fleetingly in the course of the processing part.

Consequently, although it appears clear that hemp-derived CBN shouldn’t be handled as a Schedule I managed substance analogue, it’s unclear whether or not CBN that outcomes from processed hemp-derived THC is lawful, given the complicated authorized standing of THC not “in hemp.”

This lingering uncertainty concerning the authorized standing of CBN will probably should be addressed by way of laws or the courts. In the meantime, producing CBN from THC extracted from hemp ought to be accomplished cautiously and with the understanding that this lesser-known cannabinoid could also be handled as a managed substance beneath the CSA — even when Congress didn’t take into account or intend this consequence.

Re-published with the permission of Harris Bricken and The Canna Law Blog

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