When the 2018 Farm Bill was signed into law, Congress made clear: The Drug Enforcement Administration (DEA) was out of the hemp business. This made perfect common sense: Since hemp and tetrahydrocannabinols derived from hemp were no longer controlled substances, the DEA could focus its time and resources fighting real problems, like the opioid epidemic and methamphetamines.
Unfortunately, the agency has not yet disappeared into that good night. Last year, USDA’s interim regulations relied much too heavily and unnecessarily on DEA involvement, prompting USDA Secretary Sonny Perdue to blame DEA for its burdensome requirements.
More recently, on August 20, the DEA issued its own Interim Final Rule (IFR) which raises serious concerns for the hemp industry and its supporters.
The critical issue involves its treatment of so-called “work-in-progress” hemp extract. As Congress was well aware when it passed the 2018 Farm Bill, the intermediate stages of hemp extract processing can cause the extracts to temporarily exceed 0.3% delta-9 tetrahydrocannabinol (Δ-9 THC). By defining hemp based on its Δ-9 THC concentration on a “dry weight basis,” Congress made clear that hemp derivatives are lawful so long as they do not exceed that concentration as starting plant material and in finished form—when dry weight measurements are generally calculated and are necessary to ensure compliance with the threshold. The IFR, however, purports to treats hemp as a Schedule I controlled substance at any point during which its Δ-9 THC concentration exceeds 0.3%.
A DEA spokesman has assured the hemp industry that its enforcement priorities lie elsewhere, and the agency is “evaluating its policy options.”
But given hemp’s history with the agency, we are not taking those assurances lying down.
First, in the coming days, the U.S. Hemp Roundtable will submit comprehensive comments on the IFR. The IFR is currently in the public comment process, which closes on October 20. The DEA has already received more than 1,500 comments from industry stakeholders. If you have any suggestions for those comments, please click here to send them to us. We also encourage all Hemp Supporters to submit individual comments to the DEA before October 20. Comments may be submitted at this portal.
Second, we are working with our champions on Capitol Hill to address these issues and potentially pass legislation that could provide stronger, belt-and-suspender legal protections for the industry.
Finally, we are exploring the possibility of joining litigation to challenge the IFR. Litigation is always a last resort, but the industry has had continued success in the courts against the DEA, and we may need to pursue that route again here.
We will keep you updated on our progress. Pleas
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