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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 which 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.