Shakeel A. Kahn, MD

www.doctorsofcourage.org/shakeel-a-kahn-md/

This should be interesting–two dogs fighting over the same bone. Shakeel Kahn and his wife, Lyn Kahn, of Casper, Wyoming were indicted by the Federal Government in two different states in order to steal the same property. But since the winning district reaps the reward of the forfeited assets, these two districts will definitely be at odds.

In January, 2017 Dr. Shakeel A. Kahn, MD, a family practitioner specializing in pain management, was indicted in Wyoming on 21 illegal charges from the usual adulteration of the Controlled Substance Act. As stated in the indictment, “It was a part of the conspiracy that S. Kahn would use his Wyoming and Arizona DEA registrations to prescribe large amounts of Oxycodone and other controlled substances to his customers outside of the usual course of professional practice and to customers without a legitimate medical need,” and failed to conduct any legitimate medical examinations.

Then in March, 2017, Dr. Kahn was also indicted in Arizona.

Wyoming’s Case

Dr. Kahn had his license suspended in Wyoming in November, 2016.

The DEA search warrant used as their justification that the agents believed Dr. Kahn was taking cash payments to prescribe oxycodone to patients in Wyoming, Arizona and elsewhere. Well, let’s see–he’s a doctor in pain management. That sounds like he was doing his job, and the government violated his 4th amendment rights of unreasonable search and seizure. More about that experience later.

By affidavit, which is supposed to be sworn truth, a DEA agent stated that the investigation was prompted by a complaint from the Wyoming Board of Pharmacy. That could be true. The government is actually in cahoots with the Boards of Medicine. Supposedly that happened in my case as well, with a Board of Pharmacy investigator actually going around to pharmacies looking for prescriptions to use against me for the government. I wonder where the salaries of these Benedict Arnolds come from–probably the government.

Now for the crux of the attack: Prosecutors sought (and succeeded in) seizing bank accounts and other assets owned by Dr. Kahn, as well as other totally uninvolved members of his family, such as his father, who kept his entire life savings at home in a safe. So we have Wyoming in possession of Dr. Kahn’s and his family’s assets. In the fight with Arizona, will possession be 9/10 of the law?

Because of the fact that they were left with nothing, the Kahn’s have had to ask for public defenders. That’s how the government wins most cases. Public defenders’ salaries come from the government. They don’t work for the defendant at all. In fact, I suspect they get paid bonuses for losing.

Arizona’s Case

Dr. Khan’s Arizona license was suspended by the Board of Medicine in August, 2016.

The Arizona indictment alleged that Dr. Kahn required customers to primarily pay him in cash. This sounds like a perjurous statement from a government agent. A statement about Dr. Kahn’s office says “Shakeel A. Kahn, MD practices Pain Medicine in Casper, WY. Dr. Kahn accepts multiple insurance plans including Aetna and Cigna.” But the truth doesn’t ever get stated to the Grand Jury. Government agents commit perjury all the time to indict any doctor they want to. And they do it without retribution. We, the people, have to change that. Immunity for criminal acts by government agents has to end.

Also, if Dr. Kahn was only taking cash, and patients with insurance were paying it, then that meant he was the only pain management physician available. By shutting him down, potentially hundreds of chronic pain patients are thrown to the streets for self-treatment. I wonder how many deaths have been the result. The government is a danger to public safety, not the doctors.

The US District of Arizona is pursuing forfeiture of assets including two Fort Mohave properties and another in Wyoming. The forfeiture effort also targets about $1-million in cash seized in Kahn’s Arizona home, $130,000 in cash in bank accounts, and three vehicles.

To add insult to injury, the local law enforcement agency (Mohave Area General Narcotics Enforcement Team or MAGNET) is conducting an in rem seizure of other property, namely a gun collection that was gifted to his father and brothers and eight vehicles including two that were purchased in another country and anything else that is of any value.

Lyn Kahn

Dr. Kahn’s wife, Lyn, was dragged into the case so that ALL of their assets could be confiscated. She is accused of being involved in the sale of painkiller prescriptions by allegedly using her husband’s prescription database account to look up information on former patients and violating federal laws that protect patient privacy. This sounds like another attempt of the government to create a crime where there is no crime. Spouses often help in the administrative end of a business, often without pay. My husband did. How is the government going to support the charge of “knowingly obtaining individually identifiable health information under false pretenses”?  I tell you, the government agents creating these false charges are someday going to be standing in front of the judgement seat of God. I feel sorry for them. It is a sin to falsely accuse someone of a crime. In fact, all of these US Attorneys in all of these false cases against doctors are going to have a clubhouse in hell. To make matters worse, Lyn Kahn was threatened with the loss of her infant child unless she agrees to perjure herself and testify against her husband and brother-in-law.

That’s how this person can become this person: 

The eyes tell it all: the trauma and suffering.

Lyn Kahn’s eight charges are: one count of conspiracy to distribute oxycodone and alprazolam, two counts of dispensing oxycodone and five counts of unlawful use of a communication facility. What the heck does that mean?

Dr. Kahn has been continuously incarcerated since January. This is another ploy of the government to prevent an innocent doctor from defending himself. Obviously, they don’t have much to go on if they have to hold the defendant in jail so he can’t work on his defense.

Eyewitnesses of the searches of Dr. Kahn’s homes have shared the unbelievable horror of what happened. When you read this, put yourself in their position. You haven’t broken any law. You are an honest, productive citizen, and one day there is a knock on your door and a gun in your face.

http://doctorsofcourage.org/charged/shakeel-khan-md/

Or you hear a sound of someone in your home:

http://doctorsofcourage.org/charged/raid-on-dr-khans-arizona-home/

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Meet the Doctor Who Refuses to Stop Prescribing Opioids to Pain Patients

Pain patients from across the country are flocking to a boundary-pushing pain specialist in West Covina, California because they can’t get the treatment they need in their home states.

A growing “opioid epidemic” in the U.S. has led law enforcement agencies to crack down on so-called pill mills, leading to the arrest of several physicians. Last year, the Drug Enforcement Agency (DEA) clamped down on painkillers, reducing the allowed production of opioid medications by about 25 percent. Some states have filed lawsuits against pharmaceutical manufacturers, and, earlier this year, the Center for Disease Control (CDC) issued guidelines advising physicians against prescribing high doses of these drugs, which can be particularly lethal when combined with alcohol or anti-anxiety medications. Many doctors will only prescribe opioids as a last resort.

Dr. Forest Tennant, 76, says this regulatory backlash is preventing chronic pain sufferers from getting the drugs they need to alleviate their conditions, and he refuses to go along. Critics have denounced his unapologetic style and unorthodox methods, but his patients depict him as one of the only physicians in America to put the needs of his patients first.

“[Tennant was] the first doctor to say, ‘our goal is to relieve your pain,'” says Kristen Ogden, whose husband Louis Ogden has suffered from chronic pain for decades. They travel to Dr. Tennant’s office from Virginia for treatment every three months. “Every other doctor had said, ‘our goal is to get you off any opioid medications.'”

Many physicians have even begun to adjust the way that they think about pain.

In a New England Journal of Medicine article, one of the pain specialists advising the CDC recommended that pain patients “use coping and acceptance strategies that primarily reduce the suffering associated with pain and only secondarily reduce pain intensity.” That opioids are never an effective chronic pain treatment is quickly becoming conventional wisdom, and the American Medical Association (AMA) has even begun to advise physicians to abandon the pain rating scale when assessing patients.

“I take the Hippocratic oath seriously, that my job is to relieve pain and suffering,” says Dr. Tennant. “So when I see the AMA decide that they’re not going to assess pain, I’m not with them.”

Tennant has run a pain clinic since the 1970s when he mostly treated patients with pain resulting from cancer and polio. He’s never shied away from the public spotlight.

In addition to serving as mayor of his city, he ran some of Los Angeles County’s earliest methadone clinics to treat heroin addicts and in the late ’80s served as a drug adviser for the NFL, NASCAR, and the Los Angeles Dodgers.

Controversy swirled around him in many of these roles.

He angered the NFL when he publicly disclosed plans to monitor several New England Patriots players for drug use. One NASCAR racer even accused him of colluding to falsify drug tests to target him.

Tennant simply told the New York Times that “[n]o mistakes were ever made.”

Tennant says it’s true that opioids were overprescribed in the past and should generally be a last resort for pain treatment. But he believes the media and government have now gone too far in demonizing them, and it’s legitimate pain patients who are paying the price.

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DEA Allowed Criminal Cops to Build Their Own Drug Empires for Over a Decade

www.thefreethoughtproject.com/dea-ignored-agents-selling-drugs-for-over-a-decade/

According to a whistleblower inside the DEA, the agency “allowed and promoted” multiple officers to run their own personal drug cartels for years

New Orleans, LA — For over a decade, agents with a New Orleans-based DEA task force sold drugs, intimidated informants and stole cash on the job with total impunity.

According to the Advocate, Chad Scott, the former leader of the task force has been fired in the midst of the investigation. It was reported that Scott and some of the officers working under him had a massive operation selling painkillers and that they would sometimes sell other drugs that they managed to steal from dealers during raids.

“There were a series of complaints that went back years. This is a guy who probably shouldn’t have been allowed to run his own task force,” an anonymous law enforcement official said.

The good news, in this case, is that a large and growing number of federal criminal drug cases are being reversed and nonviolent offenders are being set free due to the fact that this corruption has been exposed.

The FBI is now involved in the investigation and is reviewing the allegations against the officers. Many of the crimes that were committed by these officers happened so long ago that they can’t even be charged with them anymore, but their crime spree continued long into recent times so there is still a large amount of evidence against them.

DEA Special Agent Debbie Webber said in a statement that “DEA takes very seriously any allegations of wrongdoing or misconduct and holds our employees to the highest possible standards. Due to this being an ongoing investigation and with respect to all parties involved, the DEA cannot and will not comment on personnel matters or inquiries related to this investigation.”

The most disturbing thing about this case is that the DEA may have known about these crimes all along but allowed the officers to continue anyway.

The Advocate reported that four different whistleblowers within the DEA came forward to admit that they warned the DEA over a decade ago about this illegal activity. Unfortunately, their warnings were ignored and the guilty officers saw no consequences for their actions.

One anonymous whistleblower and former colleague of the members of the task force said that Scott could do pretty much whatever he wanted within the DEA.

“The DEA allowed it, if not promoted it,” the whistleblower said, going on to describe Scott as a “cowboy.” The officer also said that Scott was not alone and that a culture of corruption existed within the task force.

Last year, one of the whistleblowers even filed a lawsuit claiming that Scott protected informants who sold drugs and committed other crimes in exchange for tips that would help him get more arrests and improve his arrest numbers.

The veteran DEA agent said in the lawsuit that he faced repeated retaliation from superiors after telling them about what Scott was doing on the job. The Justice Department agreed to an out of court settlement worth $200,000.

The informant “stated that he was only doing as instructed by the ‘authorities’ because he feared for the safety of his family,” according to DEA documents.

These officers were essentially running their own cartels — granted to them by the DEA.

Adding to the growing pile of evidence, Johnny Domingue, another former member of the task force, was arrested and pled guilty, admitting to using his position to “to acquire quantities of cocaine hydrochloride and other Schedule II controlled dangerous substances, marijuana, methamphetamine, other prescription pills, cash from the sale of these drugs and cash seized from individuals who were arrested or ‘shaken down’ while acting under the color of law enforcement.”

Domingue even admitted to stealing over 300 grams of cocaine from the evidence locker at the DEA’s New Orleans Field Division.

Domingue said that when he joined the task force this type of activity was already extremely common.

Douglas Bruce, an investigator with the Justice Department, testified in court that when he interviewed Domingue, he was told that corruption “was a practice that was already in place when he came on board, and he inserted himself sort of in that circle.”

What this case illustrates is the criminal incentive created by the war on drugs and the monopoly of power granted specifically to those tasked with carrying it out. Making arbitrary substances illegal, and then tasking individuals with the control of those substances creates a temptation of easy money that is hard to pass up. 

This case is hardly isolated as this scenario is but a broken record of corruption, playing over and over again in departments across the country.

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S.D. Cops Forced Catheters for Drug Testing

https://www.usnews.com/news/national-news/articles/2017-07-07/south-dakota-cops-indulged-sadistic-desires-forcing-catheters-into-men-aclu-lawsuit-says

Although some men volunteered to give urine samples for drug testing, the Pierre Police Department forcibly catheterized them any way, according to a lawsuit.

Clarified on July 7, 2017: This article has been updated to clarify Samantha Cook’s experience.

Filed under: General Problems | 3 Comments »

Endo Pharma Agrees to Pull Abuse-Deterrent Opioid

http://www.medscape.com/viewarticle/882578

Endo Pharmaceuticals has agreed to remove its abuse-deterrent extended-release formulation of oxymorphone (Opana ER) from the US market, about a month after the US Food and Drug Administration (FDA) asked the company to stop selling the pain medication.

In a statement, the company said it “continues to believe in the safety, efficacy, and favorable benefit-risk profile” of Opana ER when used as intended. “Nevertheless, after careful consideration and consultation with the FDA following the FDA’s June 2017 withdrawal request, the company has decided to voluntarily remove Opana ER from the market.”

As previously reported by Medscape Medical News, the FDA asked Endo Pharmaceuticals to take Opana ER off the market on the basis of a review of postmarketing data, which demonstrated a significant shift in the route of abuse of Opana ER from nasal administration to injection after the product’s reformulation.

Injection abuse of reformulated Opana ER has been associated with an outbreak of HIV infection and hepatitis C virus infection, as well as cases of thrombotic microangiopathy, the FDA said.

This is the first time the FDA has taken steps to remove a currently marketed opioid pain medication from sale because of the public health consequences of abuse.

The request by the FDA came on the heels of a March meeting of an FDA advisory panel of independent experts who voted 18 to 8 that the benefits of reformulated Opana ER for relief of severe pain no longer outweigh its risks.

Endo Pharmaceuticals said it will work with the FDA to coordinate the “orderly removal” of Opana ER to minimize treatment disruption for patients and allow patients sufficient time to seek guidance from their healthcare provider on other treatment options.

According to the company, net sales of Opana ER were $158.9 million in 2016 and $35.7 million in the first quarter of 2017.

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Trump’s Surgeon General Pick Built Reputation Fighting HIV And Opioids In Indiana

http://www.npr.org/sections/health-shots/2017/07/05/535618770/surgeon-general-nominee-championed-policies-to-curb-indiana-s-opioid-epidemic

Several weeks before President Trump nominated Indiana’s state health commissioner Jerome Adams to be the next U.S. Surgeon General, Adams toured the Salvation Army Harbor Light detox center in Indianapolis, Ind., the only treatment facility in the state for people without insurance.

His supporters say the visit is an example of how he’s prioritized the opioid epidemic during his tenure as Indiana’s top health official. Addiction specialists and advocates say he’s led important progress in implementing lifesaving policies. They believe that if confirmed, Adams would use his on-the-ground experience to guide national policy.

“I believe that Dr. Adams understands the value of community grassroots efforts, that they should be included at the table with decision makers,” says Justin Phillips, founder of the prevention-focused group Overdose Lifeline, who toured the detox center with Adams. “They need to understand what’s realistic in the field.”

A practicing anesthesiologist, Adams was appointed Indiana Health Commissioner by then-Gov. Mike Pence in October 2014. Four months into the job, he announced an HIV outbreak in rural Scott County, Ind., after health workers documented 26 cases of HIV there. By May 2015, the number of confirmed infections had risen to 158, spread almost entirely through injection drug use. 88 percent of them also tested positive for hepatitis C. Today, the number of confirmed HIV cases has reached 219.

Pence had expressed moral reservations about syringe exchanges — a sentiment that Adams told the New York Times he originally shared. But in March 2015, the governor acted on advice from Adams and the Centers for Disease Control and Prevention and authorized a 30-day emergency syringe exchange, citing a public health emergency. Later that spring, Pence signed a law legalizing syringe exchanges in Indiana.

Beth Meyerson, co-director of Indiana University’s Rural Center for AIDS/STD Prevention, worked closely with Adams throughout that period. She says early on, when it became clear to legislators that a clean syringe exchange program was needed to reduce the spread of HIV and hepatitis C, Adams was able to bring public health evidence to the table.

“Dr. Adams navigated the very ideological political environment that was created by then-Gov. Pence,” she says. “There’s just no doubt the governor wouldn’t have listened to me or listened to the leaders in the legislature, but he would listen to Jerome Adams.”

She thinks Adams will have sway working with Vice President Pence on a national scale, too. “He will navigate [Washington], I suspect, the same way that he did in Indiana, which is to listen to communities, work with several partners across the arena, and bring public health evidence to the table again as an advocate for community health,” Meyerson says.

Adams has since supported other state laws aimed at curbing the opioid epidemic, including a bill that increased access to the overdose antidote naloxone, and another that restricts the amount of opioid medication a prescriber may give to adult patients who have not previously taken opioids and to children.

Still, Meyerson says expectations about what Adams might do in Washington have to be tempered by political reality. Even in Indiana, the laws he helped pass haven’t been as comprehensive as she and other public health workers would have liked. The original syringe exchange law “was an administrative nightmare,” she says. It has since been updated by Indiana Gov. Eric Holcomb, making it easier for counties to start exchanges.

Funding also remains an issue. Indiana ranks 49th in the country in public health spending. “So all of these counties who have tried to move forward for syringe access are doing so with both hand tied behind their backs, because they do not have the resources to make this happen,” Meyerson says.

If confirmed by the Senate, Adams would be the second health official from Pence’s home state to join the Trump administration. Seema Verma, who helped shape Indiana’s Medicaid expansion, now heads the Centers for Medicare and Medicaid Services.

This past March, this physician – head of the Indiana Health Dept – made a presentation to a meeting of the Indiana Pharmacist Alliance.  I came away impressed by the common sense of this young – at least to me – doctor.

I was not sitting far from where he was standing and had the opportunity to ask some pointed questions about content of his presentation…  after about the second question.. he turned to the audience and said ” he is actually NOT A PLANT” and then turn to me and said that “maybe I should take you with me to presentations”… at that time .. I extended my hand with my BUSINESS CARD… which he walked over to me and accepted and put in his coat pocket  🙂

According to this article he was first opposed to the clean needle program in Scott Co Indiana but upon realizing the alternatives, was able to make a intellectual change of mind.

That was two years ago and according to recent local news reports, there is a measurable change in Scott Co and the number of substance abusers.

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Pharmacists Held Criminally Liable for Opioid Overdoses

http://www.medscape.com/viewarticle/882358

As the US opioid epidemic continues to soar, physicians have been held criminally responsible for patients’ overdose deaths. Now, it appears pharmacists are also criminally liable.

That’s the opinion of pharmacy law experts who have watched the crisis unfold during the past decade.

Keith Yoshizuka, PharmD, JD, assistant dean for administration at the Touro University College of Pharmacy, Vallejo, California, notes, for example, that in 2015, a California physician, Lisa Tseng, MD, was convicted of second-degree murder for the overdose deaths of three patients. She was later sentenced to 30 years to life in prison.

I did not reprint the entire article… it is four pages long… you can use the link to read it if you wish. 

If those in the chronic pain community has not figured it out by now… you are either part of a GENOCIDE or a unwitting participate in the war on drugs.

They are using our system of laws to “manage you”… it is like herding cows/pigs taking them to the SLAUGHTER.

The DEA has pushed Pharmacists into making “second opinions” on the prescriber’s diagnosis of a pt’s and the appropriateness of the medication being prescribed for a pt.  A Pharmacist does not have the legal authority to do a physical exam, nor do they have access to the pt’s complete medical history.  Now, the pharmacist is expected to do a mental health evaluation each time a controlled substance prescription is filled ?

And could be held liable if he/she is not RIGHT 100% OF THE TIME ?

The 51 Boards of Pharmacy (BOP) to date have done nothing to push back on these demands on Pharmacists.  It is just going to make more Pharmacist “not comfortable”.. and it is just easier/safer to JUST SAY NO !

FOLKS…  it is time to get your smart phones out and start recording all your interactions with healthcare professionals…  “NOT COMFORTABLE” is NOT a FACTUAL REASON to refuse to fill a prescriptions.. it is a LAME EXCUSE.. it is a DODGE…

Afraid to stand up because of “consequences”… just look at the horizon..  the “consequences ” are coming.. compliments of the DEA, DOJ, FDA, CDC and what other alphabet of Federal agencies that want to get a piece of the 81 billion/yr war on drugs budget.

“Even if you’re on the right track, you’ll get run over if you just sit there.” ~Will Rogers |

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Orleans Parish man claims he was detained at Wal-Mart for asking to speak to a manager

http://louisianarecord.com/stories/511130765-orleans-parish-man-claims-he-was-detained-at-wal-mart-for-asking-to-speak-to-a-manager

NEW ORLEANS – An Orleans Parish man is seeking damages, claiming that he was arrested after asking to speak with the manager of a Wal-Mart.

Michael E. Duronslet filed a lawsuit June 20 against Walmart Stores Inc. and Marlin N. Gusman, sheriff for Orleans Parish in Orleans Parish Civil District Court alleging negligence.

The plaintiff was allegedly attacked by the officer, who threw him to the floor, detained him in a private room and threatened arrest unless the plaintiff signed an agreement to not enter the property again. The plaintiff signed the form but claims he was not in the wrong and that the actions of the police officer and the Walmart employee made him suffer emotional and physical distress.

The defendant is accused of excessive force, negligence, false arrest and deprivation of civil rights.

The plaintiff seeks all reasonable damages, court costs, attorney fees and all appropriate relief. The plaintiff is represented by attorney Vallerie Oxner in Metairie.

The case has been assigned to Division J Judge Cherrell S. Taplin.

Orleans Parish Civil District Court case number 17-5958

Filed under: General Problems | 3 Comments »

http://www.13wmaz.com/news/opioid-epidemic-may-be-keeping-legitimate-patients-from-getting-pain-meds/454309714

Almost every morning is the same for Lauri Nickel — the pain may fluctuate, but it is always there.

“Some days are better than others,” said Nickel.

A staunch advocate for people with chronic pain, Nickel is upset with her leaders and elected officials.

She believes their effort to combat opioid abuse is having a negative effect on people who desperately need the drugs.

“You are sentencing people to an early death,” she said.

She is convinced the extreme focus has scared doctors from prescribing opioids to longtime patients who desperately need pain medication.

The result, according to Nickel, is that many patients will simply give up and take their own life.

Barby Ingle has not given up but it has been a difficult and often gut-wrenching journey.

The former college cheerleader and coach has battled chronic pain more than 20 years.

“Chronic pain devastated my life,” Ingle said. “It took everything away.”

At one point the pain was so bad and the prospects ahead so dire she contemplated suicide.

“I did think about it,” she said.

For the millions of people like Ingle and Nickel, opioids serve a critical role in their lives.

“It’s about quality of life, about surviving day to day, minute to minute, second to second,” said Ingle.

The two women say they know of several friends who have been denied access to opioids by doctors afraid to continue to prescribe the medication.

“They don’t want the DEA to come knocking on their door,” said Ingle.

“The people suffering from chronic pain should be mad at the people abusing the system,” said Doug Coleman, the Special Agent in Charge of the Arizona DEA office.

The longtime DEA agent says his office doesn’t target doctors who are prescribing opioids to legitimate patients.

Ingle and Nickel are not blind to the opioid problem but are worried this intense focus to curb the unlawful distribution of opioids could end up with many of their friends suffering in silence.

Do you know someone suffering from chronic pain who is being denied medicine or is worried about not getting the medicine they need? Email us at eyewitnessnews@13wmaz.com

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With DEA digging in its heels on “marijuana extracts,” legality of CBD oil on trial in federal courts

www.thecannabist.co/2017/07/05/cbd-hemp-dea-marijuana-extracts-federal-lawsuit/82623/

Cannabist Special Report: CBD, TBD || Outcome of lawsuit pitting the hemp industry against the DEA could chart a new course for CBD — and a booming new agricultural sector.

Cannabidiol is a non-psychoactive cannabis compound touted for its medicinal promise — but marijuana- and hemp-derived extracts rich in CBD and low in intoxicating THC are facing a future yet to be determined.

The Cannabist’s special report “CBD, TBD” explores a regulatory and legal landscape pockmarked by federal-state conflicts, and examines national drug policy, pioneering research efforts and disparate avenues toward the compound’s full legalization. This is the third installment in an ongoing series.

Part I – Forbidden medicine: Caught between a doctor’s CBD advice and federal laws

Part II – How advocates are inspiring congressional action on CBD legalization

There are two wildly different views on how the federal government has classified cannabidiol (CBD) with a new drug code for marijuana extracts:

It was a mere administrative maneuver meant to bring the U.S. in line with international drug control treaties and to better track medical research.

It was the opening salvo in a federal offensive against the emerging American hemp industry.

A proposed final rule notice posted to the Federal Register last December by the U.S. Drug Enforcement Administration established a Controlled Substances Code Number for “marihuana extracts.” The rule notice, which was finalized in January, maintained cannabis-derived extracts’ Schedule I status under the Controlled Substances Act (CSA).

What the DEA saw as innocuous, the hemp industry saw as an existential threat.

Overnight, a pall was cast across an industry pumping out products ranging from hemp seed butter to bio-plastics used in automobiles to CBD oil, a non-psychoactive cannabis compound that has been highly touted for its potential medicinal benefits.

Hysteria and confusion swelled after initial reports erroneously asserted that a scheduling action occurred and that CBD was now illegal and in the crosshairs of the government.

Shortly after the rule was announced, DEA officials reiterated to The Cannabist that no scheduling action took place. None was necessary — CBD oil and other extracts derived from marijuana and hemp “have been and will continue to be Schedule I controlled substances,” officials said.

The DEA has not changed its stance.

Hemp industry lawyers claimed the rule instantly subjected what were presumed lawful operations to DEA registration and drug code assignation, effectively treating their products as controlled. The coding also amounted to the DEA acting outside of its authority by attempting to schedule cannabinoids, or even marijuana extracts, which are not explicitly listed in the Controlled Substances Act, attorneys alleged.

A federal lawsuit filed in January by Denver’s Hoban Law Group on behalf of the Hemp Industries Association, Centuria Natural Foods and RMH Holdings LLC was intended to protect an American agricultural revival, attorney Bob Hoban told The Cannabist.

“The entire industry hinges on this,” Hoban said.

Now it’s up to the 9th U.S. Circuit Court of Appeals to make a decision that could chart a new course for the hemp industry.

Uncertain times, booming business

At least 16 states, including Colorado, have laws allowing cultivation of hemp for research and/or commercial purposes, according to the National Conference of State Legislatures.

In 2016, the hemp industry notched an estimated $688 million in U.S. sales, setting a new record, according to an analysis by the Hemp Business Journal. Hemp-derived CBD accounted for an estimated $130 million share of that total, the Denver-based trade publication reported.

However, questions have continuously swirled around the legality of the sourcing, manufacturing processes and distribution of the plant’s products and extracts.

Central to the issue are the parts of the cannabis plant that are refined into products. In the Controlled Substances Act, the government defines marijuana as:

“all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.”

What has been excluded from the CSA definition — mature stalks and unviable seed — is considered to contain only traces of cannabinoids such as psychoactive THC. Foods such as hemp-seed hearts and cooking oil made from seed fall into this category.

DEA officials confirmed to The Cannabist last December that the new code number would have no effect on the slew of hemp products not intended for human consumption that are already exempt from the CSA. That included the likes of lotions, shampoos, solvents, ropes, clothing and bird seed, officials said.

Questions arise when hemp plants that are naturally low in THC are used to make CBD oil.

“The uncertainty, frankly, is what has created this industry,” Hoban said. “Economics and business thrive in uncertainty.”

Surviving in uncertainty, however, is another matter.

Hoban said the industry can’t sit on the sidelines assuming state legalization and existing case law will shield producers, retailers and consumers of hemp-derived products.

He noted how companies in Texas and Kentucky had their CBD products seized by state police. He expressed concern that operations by the U.S. Customs and Border Patrol could lead to seizures of CBD oil and other hemp-derived products under the auspices of the DEA’s marijuana extract coding.

CBD oil’s legality has been questioned in places like Orchard Park, New York, where officials for a state-run special care facility said federal law prohibited them from administering doctor-recommended CBD oil for a patient.

“There’s no black and white about this,” Hoban said, and added that the fight in the courts is critical.

The U.S. Court of Appeals in San Francisco provides a familiar battleground for the DEA and the Hemp Industries Association. Nearly two decades ago, the 9th Circuit set precedents on hemp foods and cannabinoids that play heavily into this year’s case.

In 2003, the court ruled against the DEA’s “Interpretive Rule” banning all naturally occurring THC, including the trace amounts found in hemp seed and oil. In 2004, that same appellate court established bounds on the DEA’s authority related to natural and synthetic THC, according to court records:

The DEA’s Final Rules purport to regulate foodstuffs containing “natural and synthetic THC.” And so they can:  in keeping with the definitions of drugs controlled under Schedule I of the CSA, the Final Rules can regulate foodstuffs containing natural THC if it is contained within marijuana, and can regulate synthetic THC of any kind. But they cannot regulate naturally-occurring THC not contained within or derived from marijuana-i.e., non-psychoactive hemp products-because non-psychoactive hemp is not included in Schedule I. The DEA has no authority to regulate drugs that are not scheduled, and it has not followed procedures required to schedule a substance.

A decade later, Congress passed the Agricultural Act of 2014, also known as the Farm Bill, which allowed states to set laws on hemp production. The act defined industrial hemp as “the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”

Under that legislation, a state department of agriculture or university could produce industrial hemp for research purposes, and others could grow the versatile crop under state-sanctioned pilot programs.

Poking the bear

Past circuit court rulings and hemp-friendly federal legislation have offered legal precedent for producers, retailers and consumers of CBD-rich extracts, but they didn’t necessarily provide security or stability to all.

Some advocates for CBD oil in therapeutic and medical applications said they prefer a clear-cut approach — the stakes are far too high for too many people and businesses to solely rely on the courts.

Paige Figi, a Colorado Springs-area mother, credits CBD oil with drastically reducing her daughter Charlotte’s seizures caused by Dravet syndrome, a type of epilepsy. She founded the nonprofit Coalition for Access Now to lobby for CBD laws.

CBD oil’s legality ultimately needs to be decided in the halls of Congress, Figi said.

Figi and Coalition for Access Now are supporting Congressional efforts to exclude CBD — and plants rich in cannabidiol and low in intoxicating THC — from the definition of marijuana in the Controlled Substances Act.

Beyond the need for full federal legality, Figi said she is concerned that continued court battles could ultimately backfire against the entire industry.

The DEA’s enforcement priorities have been elsewhere, she said, noting that agents have mostly taken a hands-off approach toward producers that adhere to state laws and consumer safety standards.

“When you poke the bear, the DEA can come back and say, ‘It’s scheduled,” and increase enforcement actions, Figi said.

DEA spokesman Russ Baer did not respond to The Cannabist’s requests for interview about the pending lawsuit and the broader debate involving CBD oil.

Last December, Baer told The Cannabist via email that the new rule on extracts would not change the DEA’s enforcement priorities, which are focused in the widely abused areas of heroin, fentanyl, meth and cocaine.

A decision in the 9th Circuit would be legally binding in only a collection of states and territories in the western United States, Hoban said. The 9th Circuit consists of Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon and Washington.

Still, he said, a legal victory in the 9th Circuit would both clarify the DEA’s rule notice in the interim and further set precedent for the future.

“This is the first inning of a very long ballgame,” he said.

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