The DEA doesn't have the authority to make a law and schedule controlled substances without an act of Congress, argues Robert Hoban, managing partner at the Hoban Law Group. The Denver firm has represented various hemp and marijuana businesses since 2008, many of which have told Hoban and his partners that they would be plaintiffs in a lawsuit.
"I don't have enough fingers and toes to count the number of calls I've gotten from people saying, 'We'll do whatever we have to to take action,'" Hoban says. "We represent some of the most prominent trade groups, and we work with the most prominent hemp groups from around the world, so we have our pick of who might want to be a plaintiff in something like that."
But Hoban says a lawsuit is the last resort; he hopes the DEA and hemp industry can come to a solution through diplomacy or administratively.
"Reason should prevail, but if that doesn't work and the issue is deemed significant enough by the clients and the trade organizations, then we'll consider going forward," Hoban says.
The DEA has exceeded its authority in the past, he says, and now that 28 states allow medical marijuana, "the industry is up for the challenge of litigation against any government agency that operates contrary to prevailing law and enforcement policies," his firm wrote in a statement.
Because CBD comes from the non-psychoactive parts of the plant, it cannot legally be treated as a marijuana extract.
"The DEA has sought to unilaterally create laws before and has lost when challenged," the firm's statement says.
Similarly, the DEA classified Kratom as a Schedule I substance. After the industry went to the DEA and explained the economics and the products themselves, the classification was removed, Hoban says.
"The sky is not falling. It's not," Hoban says. "But this isn't a benign administrative act, either. It's somewhere in between. What's alarming is that they're trying to say all cannabinoids are dangerous, and they're not."