Ninth Circuit appeals court judges have ruled against the Hemp Industries Association in their bid to overturn a move by the Drug Enforcement Agency to classify CBD as a Schedule I substance under the Controlled Substances Act. The new rule took effect Jan. 13, 2017.

In the April 30 ruling, the panel of three judges concluded that the petitioners – the HIA, Centuria Natural Foods, Inc., and R.M.H. Holdings, Inc. – “did not participate in notice and comment, but insist that a comment submitted by a private citizen adequately raised the concerns that now comprise their petition.”

The ruling focuses on one comment, which asks whether the new DEA rule would cover “100 [percent] pure [CBD] by itself with nothing else?” To which the DEA responded by rephrasing the definition of “extracts” to apply to an “extract containing one or more cannabinoids.” While the petitioners had argued that the rule effectively created a new substance under the federal CSA, the judges ruled that “neither this comment nor any other raised with sufficient clarity Petitioners’ current argument that the Final Rule scheduled a new substance.”

The judges concluded that the rule does not conflict with the 2014 Farm Bill because the notice of the rule change – July 5, 2011 – predates the Farm Bill.

According to a Hemp Industry Daily report, the petitioners plan on appealing the ruling.

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