[Federal Register Volume 83, Number 189 (Friday, September 28, 2018)]
[Rules and Regulations]
[Pages 48950-48953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21121]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

21 CFR Parts 1308, 1312

[Docket No. DEA-486]


Schedules of Controlled Substances: Placement in Schedule V of 
Certain FDA-Approved Drugs Containing Cannabidiol; Corresponding Change 
to Permit Requirements

AGENCY: Drug Enforcement Administration, Department of Justice.

ACTION: Final order.

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SUMMARY: With the issuance of this final order, the Acting 
Administrator of the Drug Enforcement Administration places certain 
drug products that have been approved by the Food and Drug 
Administration (FDA) and which contain cannabidiol (CBD) in schedule V 
of the Controlled Substances Act (CSA). Specifically, this order places 
FDA-approved drugs that contain CBD derived from cannabis and no more 
than 0.1 percent tetrahydrocannabinols in schedule V. This action is 
required to satisfy the responsibility of the Acting Administrator 
under the CSA to place a drug in the schedule he deems most appropriate 
to carry out United States obligations under the Single Convention on 
Narcotic Drugs, 1961. Also consistent therewith, DEA is adding such 
drugs to the list of substances that may only be imported or exported 
pursuant to a permit.

DATES: Effective September 28, 2018.

FOR FURTHER INFORMATION CONTACT: Kathy L. Federico, Regulatory Drafting 
and Policy Support Section (DPW), Diversion Control Division, Drug 
Enforcement Administration; Mailing Address: 8701 Morrissette Drive, 
Springfield, Virginia 22152; Telephone: (202) 598-6812.

SUPPLEMENTARY INFORMATION: 

Background and Legal Authority

    The United States is a party to the Single Convention on Narcotic 
Drugs, 1961 (Single Convention), and other international conventions 
designed to establish effective control over international and domestic 
traffic in controlled substances. 21 U.S.C. 801(7). The Single 
Convention entered into force for the United States on June 24, 1967, 
after the Senate gave its advice and consent to the United States' 
accession. See Single Convention, 18 U.S.T. 1407. The enactment and 
enforcement of the Controlled Substances Act (CSA) are the primary 
means by which the United States carries out its obligations under the 
Single Convention.\1\ Various provisions of the CSA directly reference 
the Single Convention. One such provision is 21 U.S.C. 811(d)(1), which 
relates to scheduling of controlled substances.
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    \1\ See S. Rep. No. 91-613, at 4 (1969) (``The United States has 
international commitments to help control the worldwide drug 
traffic. To honor those commitments, principally those established 
by the Single Convention on Narcotic Drugs of 1961, is clearly a 
Federal responsibility.''); Control of Papaver Bracteatum, 1 Op. 
O.L.C. 93, 95 (1977) (``[A] number of the provisions of [the CSA] 
reflect Congress' intent to comply with the obligations imposed by 
the Single Convention.'').
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    As stated in subsection 811(d)(1), if control of a substance is 
required ``by United States obligations under international treaties, 
conventions, or protocols in effect on October 27, 1970, the Attorney 
General shall issue an order controlling such drug under the schedule 
he deems most appropriate to carry out such obligations, without regard 
to the findings required by [subsections 811(a) or 812(b)] and without 
regard to the procedures prescribed by [subsections 811(a) and (b)].'' 
This provision is consistent with the Supremacy Clause of the U.S. 
Constitution (art. VI, sec. 2), which provides that all treaties made 
under the authority of the United States ``shall be the supreme Law of 
the Land.'' In accordance with this constitutional

[[Page 48951]]

mandate, under section 811(d)(1), Congress directed the Attorney 
General (and the Administrator of DEA, by delegation) \2\ to ensure 
that compliance by the United States with our nation's obligations 
under the Single Convention is given top consideration when it comes to 
scheduling determinations.
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    \2\ 28 CFR 0.100.
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    Section 811(d)(1) is relevant here because, on June 25, 2018, the 
Food and Drug Administration (FDA) announced that it approved a drug 
that is subject to control under the Single Convention. Specifically, 
the FDA announced that it approved the drug Epidiolex for the treatment 
of seizures associated with two rare and severe forms of epilepsy, 
Lennox-Gastaut syndrome and Dravet syndrome, in patients two years of 
age and older. www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm611046.htm. Epidiolex is an oral solution that contains cannabidiol 
(CBD) extracted from the cannabis plant. This is the first FDA-approved 
drug made from the cannabis plant.\3\ Now that Epiodiolex has been 
approved by the FDA, it has a currently accepted medical use in 
treatment in the United States for purposes of the CSA. Accordingly, 
Epidiolex no longer meets the criteria for placement in schedule I of 
the CSA. See 21 U.S.C. 812(b) (indicating that while substances in 
schedule I have no currently accepted medical use in treatment in the 
United States, substances in schedules II-V do); see also United States 
v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 491-92 (2001) 
(same). DEA must therefore take the appropriate scheduling action to 
remove the drug from schedule I.
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    \3\ The drug Marinol was approved by the FDA in 1985. Marinol 
contains a synthetic form of dronabinol (an isomer of 
tetrahydrocannabinol) and thus is not made from the cannabis plant.
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    In making this scheduling determination, as section 811(d)(1) 
indicates, it is necessary to assess the relevant requirements of the 
Single Convention. Under the treaty, cannabis, cannabis resin, and 
extracts and tinctures of cannabis are listed in Schedule I.\4\ The 
cannabis plant contains more than 100 cannabinoids. Among these are 
tetrahydrocannabinols (THC) and CBD.\5\ Material that contains THC and 
CBD extracted from the cannabis plant falls within the listing of 
extracts and tinctures of cannabis for purposes of the Single 
Convention.\6\ Thus, such material, which includes, among other things, 
a drug product containing CBD extracted from the cannabis plant, is a 
Schedule I drug under the Single Convention.
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    \4\ The text of the Single Convention capitalizes schedules 
(e.g., ``Schedule I''). In contrast, the text of the CSA generally 
refers to schedules in lower case. This document will follow this 
approach of using capitalization or lower case depending on whether 
the schedule is under the Single Convention or the CSA.
    It should also be noted that the schedules of the Single 
Convention operate somewhat differently than the schedules of the 
CSA. Unlike the CSA, the Single Convention imposes additional 
restrictions on drugs listed in Schedule IV that go beyond those 
applicable to drugs listed in Schedule I. All drugs in Schedule IV 
of the Single Convention are also in Schedule I of the Convention. 
Cannabis and cannabis resin are among the drugs listed in Schedule 
IV of the Single Convention.
    \5\ There are numerous isomers of cannabidiol, which will be 
referred to here collectively as ``CBD.''
    \6\ Although the Single Convention does not define the term 
``extract,'' the ordinary meaning of that term would include a 
product, such as a concentrate of a certain chemical or chemicals, 
obtained by a physical or chemical process. See, e.g., Webster's 
Third New International Dictionary 806 (1976). Thus, the term 
extract of cannabis would include any product that is made by 
subjecting cannabis material to a physical or chemical process 
designed to isolate or increase the concentration of one or more of 
the cannabinoid constituents.
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    Parties to the Single Convention are required to impose a number of 
control measures with regard to drugs listed in Schedule I of the 
Convention. These include, but are not limited to, the following:
     Limiting exclusively to medical and scientific purposes 
the production, manufacture, export, import, distribution of, trade in, 
use and possession of such drugs. Article 4.
     Furnishing to the International Narcotics Control Board 
(INCB) annual estimates of, among other things, quantities of such 
drugs to be consumed for medical and scientific purposes, utilized for 
the manufacture of other drugs, and held in stock. Article 19.
     Furnishing to the INCB statistical returns on the actual 
production, utilization, consumption, imports and exports, seizures, 
and stocks of such drugs during the prior year. Article 20.
     Requiring that licensed manufacturers of such drugs obtain 
quotas specifying the amounts of such drugs they may manufacture to 
prevent excessive production and accumulation beyond that necessary to 
satisfy legitimate needs. Article 29.
     Requiring manufacturers and distributors of such drugs to 
be licensed. Articles 29 & 30.
     Requiring medical prescriptions for the dispensing of such 
drugs to patients. Article 30.
     Requiring importers and exporters of such drugs to be 
licensed and requiring each individual importation or exportation to be 
predicated on the issuance of a permit. Article 31.
     Prohibiting the possession of such drugs except under 
legal authority. Article 33.
     Requiring those in the legitimate distribution chain 
(manufacturers, distributors, scientists, and those who lawfully 
dispense such drugs) to keep records that show the quantities of such 
drugs manufactured, distributed, dispensed, acquired, or otherwise 
disposed of during the prior two years. Article 34.
    Because the CSA was enacted in large part to satisfy United States 
obligations under the Single Convention, many of the CSA's provisions 
directly implement the foregoing treaty requirements. None of the 
foregoing obligations of the United States could be satisfied for a 
given drug if that drug were removed entirely from the CSA schedules. 
At least one of the foregoing requirements (quotas) can only be 
satisfied if the drug that is listed in Schedule I of the Single 
Convention is also listed in schedule I or II of the CSA because, as 21 
U.S.C. 826 indicates, the quota requirements generally apply only to 
schedule I and II controlled substances.
    The permit requirement warrants additional explanation. As 
indicated above, the Single Convention obligates parties to require a 
permit for the importation and exportation of drugs listed in Schedule 
I of the Convention. This permit requirement applies to a drug product 
containing CBD extracted from the cannabis plant because, as further 
indicated above, such a product is a Schedule I drug under the Single 
Convention. However, under the CSA \7\ and DEA regulations, the import/
export permit requirement does not apply to all controlled substances. 
Rather, a permit is required to import or export any controlled 
substance in schedule I and II as well as certain controlled substances 
in schedules III, IV, and V. See 21 U.S.C. 952 and 953; 21 CFR 1312.11, 
1312.12, 1312.21, 1312.22. Thus, in deciding what schedule is most 
appropriate to carry out the United States' obligations under the 
Single Convention with respect to the importation and exportation of 
Epidiolex, I conclude there are two options:
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    \7\ The provisions of federal law relating to the import and 
export of controlled substances--those found in 21 U.S.C. 951 
through 971--are more precisely referred to as the Controlled 
Substances Import and Export Act (CSIEA). However, federal courts 
and DEA often use the term ``CSA'' to refer collectively to all 
provisions from 21 U.S.C. 801 through 971 and, for ease of 
exposition, this document will do likewise.
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    (i) Control the drug in schedule II, which will automatically 
require an

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import/export permit under existing provisions of the CSA and DEA 
regulations or
    (ii) control the drug in schedule III, IV, or V, and simultaneously 
amend the regulations to require a permit to import or export 
Epidiolex.
    It bears emphasis that where, as here, control of a drug is 
required by the Single Convention, the DEA Administrator ``shall issue 
an order controlling such drug under the schedule he deems most 
appropriate to carry out such obligations, without regard to the 
findings required by [21 U.S.C. 811 (a) or 812(b)] and without regard 
to the procedures prescribed by [21 U.S.C. 811 (a) or (b)].'' 21 U.S.C. 
811(d)(1) (emphasis added). Thus, in such circumstances, the 
Administrator is not obligated to request a medical and scientific 
evaluation or scheduling recommendation from the Department of Health 
and Human Services (HHS) (as is normally done pursuant to section 
811(b)).\8\ Nonetheless, DEA did seek such an evaluation and 
recommendation from HHS with respect to the Epidiolex formulation. In 
responding to that request, HHS advised DEA that it found the Epidiolex 
formulation to have a very low potential for abuse and, therefore, 
recommended that, if DEA concluded that control of the drug was 
required under the Single Convention, Epidiolex should be placed in 
schedule V of the CSA.\9\ Although I am not required to consider this 
HHS recommendation when issuing an order under section 811(d)(1), 
because I believe there are two legally viable scheduling options 
(listed above), both of which would satisfy the United States' 
obligations under the Single Convention, I will exercise my discretion 
and choose the option that most closely aligns to the HHS 
recommendation. Namely, I am hereby ordering that the Epidiolex 
formulation (and any future FDA-approved generic versions of such 
formulation made from cannabis) be placed in schedule V of the CSA.
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    \8\ In the House Report to the bill that would become the CSA 
(H. Rep. No. 91-1444, at 36 (1970)), this issue is explained as 
follows:
    Under subsection [811(d)], where control of a drug or other 
substance by the United States is required by reason of its 
obligations under [the Single Convention], the bill does not require 
that the Attorney General seek an evaluation and recommendation by 
the Secretary of Health, Education, and Welfare, or pursue the 
procedures for control prescribed by the bill but he may include the 
drug or other substance under any of the five schedules of the bill 
which he considers most appropriate to carry out the obligations of 
the United States under the international instrument, and he may do 
so without making the specific findings otherwise required for 
inclusion of a drug or other substance in that schedule.
    \9\ HHS most recently updated its medical and scientific 
evaluation and scheduling recommendation for the Epidiolex 
formulation by letter to DEA dated June 13, 2018.
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    As noted, this order placing the Epidiolex formulation in schedule 
V will only comport with section 811(d)(1) if all importations and 
exportations of the drug remain subject to the permit requirement. 
Until now, since the Epidiolex formulation had been a schedule I 
controlled substance, the importation of the drug from its foreign 
production facility has always been subject to the permit requirement. 
To ensure this requirement remains in place (and thus to prevent any 
lapse in compliance with the requirements of the Single Convention), 
this order will amend the DEA regulations (21 CFR 1312.30) to add the 
Epidiolex formulation to the list of nonnarcotic schedule III through V 
controlled substances that are subject to the import and export permit 
requirement.
    Finally, a brief explanation is warranted regarding the quota 
requirement in connection with the Single Convention. As indicated 
above, for drugs listed in Schedule I of the Convention, parties are 
obligated to require that licensed manufacturers of such drugs obtain 
quotas specifying the amounts of such drugs they may manufacture. The 
purpose of this treaty requirement is to prevent excessive production 
and accumulation beyond that necessary to satisfy legitimate needs. 
Under this scheduling order, the United States will continue to meet 
this obligation because the bulk cannabis material used to make the 
Epidiolex formulation (as opposed to the FDA-approved drug product in 
finished dosage form) will remain in schedule I of the CSA and thus be 
subject to all applicable quota provisions under 21 U.S.C. 826.\10\
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    \10\ At present, the cannabis used to make Epidiolex is grown in 
the United Kingdom and the drug is imported into the United States 
in finished dosage form.
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Requirements for Handling FDA-Approved Products Containing CBD

    As noted, until now, Epidiolex has been a schedule I controlled 
substance. By virtue of this order, Epidiolex (and any generic versions 
of the same formulation that might be approved by the FDA in the 
future) will be a schedule V controlled substance. Thus, all persons in 
the distribution chain who handle Epidiolex in the United States 
(importers, manufacturers, distributors, and practitioners) must comply 
with the requirements of the CSA and DEA regulations relating to 
schedule V controlled substances. As further indicated, any material, 
compound, mixture, or preparation other than Epidiolex that falls 
within the CSA definition of marijuana set forth in 21 U.S.C. 802(16), 
including any non-FDA-approved CBD extract that falls within such 
definition, remains a schedule I controlled substance under the 
CSA.\11\ Thus, persons who handle such items will continue to be 
subject to the requirements of the CSA and DEA regulations relating to 
schedule I controlled substances.
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    \11\ Nothing in this order alters the requirements of the 
Federal Food, Drug, and Cosmetic Act that might apply to products 
containing CBD. In announcing its recent approval of Epidiolex, the 
FDA Commissioner stated:
    [W]e remain concerned about the proliferation and illegal 
marketing of unapproved CBD-containing products with unproven 
medical claims. . . . The FDA has taken recent actions against 
companies distributing unapproved CBD products. These products have 
been marketed in a variety of formulations, such as oil drops, 
capsules, syrups, teas, and topical lotions and creams. These 
companies have claimed that various CBD products could be used to 
treat or cure serious diseases such as cancer with no scientific 
evidence to support such claims.
    www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm611047.htm.
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Regulatory Analyses

Administrative Procedure Act

    The CSA provides for an expedited scheduling action where control 
of a drug is required by the United States' obligations under the 
Single Convention. 21 U.S.C. 811(d)(1). Under such circumstances, the 
Attorney General must ``issue an order controlling such drug under the 
schedule he deems most appropriate to carry out such obligations,'' 
without regard to the findings or procedures otherwise required for 
scheduling actions. Id. (emphasis added). Thus, section 811(d)(1) 
expressly requires that this type of scheduling action not proceed 
through the notice-and-comment rulemaking procedures governed by the 
Administrative Procedure Act (APA), which generally apply to scheduling 
actions; it instead requires that such scheduling action occur through 
the issuance of an ``order.''
    Although the text of section 811(d)(1) thus overrides the normal 
APA considerations, it is notable that the APA itself contains a 
provision that would have a similar effect. As set forth in 21 U.S.C. 
553(a)(1), the section of the APA governing rulemaking does not apply 
to a ``foreign affairs function of the United States.'' An order issued 
under section 811(d)(1) may be considered a foreign affairs function of 
the United States because it is for the express purpose of ensuring 
that the

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United States carries out its obligations under an international 
treaty.

Executive Order 12866, 13563, and 13771, Regulatory Planning and 
Review, Improving Regulation and Regulatory Review, and Reducing 
Regulation and Controlling Regulatory Costs

    This action is not a significant regulatory action as defined by 
Executive Order 12866 (Regulatory Planning and Review), section 3(f), 
and the principles reaffirmed in Executive Order 13563 (Improving 
Regulation and Regulatory Review), and, accordingly, this action has 
not been reviewed by the Office of Management and Budget (OMB).
    This order is not an Executive Order 13771 regulatory action.

Executive Order 12988, Civil Justice Reform

    This action meets the applicable standards set forth in sections 
3(a) and 3(b)(2) of Executive Order 12988 to eliminate drafting errors 
and ambiguity, minimize litigation, provide a clear legal standard for 
affected conduct, and promote simplification and burden reduction.

Executive Order 13132, Federalism

    This action does not have federalism implications warranting the 
application of Executive Order 13132. This action does not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    This action does not have tribal implications warranting the 
application of Executive Order 13175. The action does not have 
substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) applies to 
rules that are subject to notice and comment under section 553(b) of 
the APA or any other law. As explained above, the CSA exempts this 
order from the APA notice-and-comment rulemaking provisions. 
Consequently, the RFA does not apply to this action.

Paperwork Reduction Act of 1995

    This action does not impose a new collection of information 
requirement under the Paperwork Reduction Act of 1995. 44 U.S.C. 3501-
3521. An agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays 
a currently valid OMB control number.

Congressional Review Act

    As noted above, this action is an order, not a rulemaking. 
Accordingly, the Congressional Review Act (CRA) is inapplicable, as it 
applies only to rules. However, the DEA has submitted a copy of this 
final order to both Houses of Congress and to the Comptroller General, 
although such filing is not required under the Small Business 
Regulatory Enforcement Fairness Act of 1996 (CRA), 5 U.S.C. 801-808.

List of Subjects

21 CFR Part 1308

    Administrative practice and procedure, Drug traffic control, 
Reporting and recordkeeping requirements.

21 CFR Part 1312

    Administrative practice and procedure, Drug traffic control, 
Exports, Imports, Reporting requirements.

    For the reasons set out above, DEA amends 21 CFR parts 1308 and 
1312 as follows:

PART 1308--SCHEDULES OF CONTROLLED SUBSTANCES

0
1. The authority citation for part 1308 continues to read as follows:

    Authority:  21 U.S.C. 811, 812, 871(b), 956(b) unless otherwise 
noted.


0
2. In Sec.  1308.15, add paragraph (f) to read as follows:


Sec.  1308.15   Schedule V.

* * * * *

 
 
 
(f) Approved cannabidiol drugs. (1) A drug product in finished      7367
 dosage formulation that has been approved by the U.S. Food and
 Drug Administration that contains cannabidiol (2-[1R-3-methyl-6R-
 (1-methylethenyl)-2-cyclohexen-1-yl]-5-pentyl-1,3-benzenediol)
 derived from cannabis and no more than 0.1 percent (w/w)
 residual tetrahydrocannabinols..................................

    (2) [Reserved]
* * * * *

PART 1312--IMPORTATION AND EXPORTATION OF CONTROLLED SUBSTANCES

0
3. The authority citation for part 1312 is revised to read as follows:

    Authority: 21 U.S.C. 821, 871(b), 952, 953, 954, 957, 958.


0
4. In Sec.  1312.30, revise the introductory text and add pargraph (b) 
to read as follows:


Sec.  1312.30   Schedule III, IV, and V non-narcotic controlled 
substances requiring an import and export permit.

    The following Schedule III, IV, and V non-narcotic controlled 
substances have been specifically designated by the Administrator of 
the Drug Enforcement Administration as requiring import and export 
permits pursuant to sections 201(d)(1), 1002(b)(2), and 1003(e)(3) of 
the Act (21 U.S.C. 811(d)(1), 952(b)(2), and 953(e)(3)):
* * * * *
    (b) A drug product in finished dosage formulation that has been 
approved by the U.S. Food and Drug Administration that contains 
cannabidiol (2-[1R-3-methyl-6R-(1-methylethenyl)-2-cyclohexen-1-yl]-5-
pentyl-1,3-benzenediol) derived from cannabis and no more than 0.1 
percent (w/w) residual tetrahydrocannabinols.

    Dated: September 21, 2018.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2018-21121 Filed 9-27-18; 8:45 am]
 BILLING CODE 4410-09-P