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DEA responds to challenge from hemp industry over 2020 rule change



The U.S. Drug Enforcement Administration is asking the D.C. court of appeals to dismiss a challenge from the hemp industry over a 2020 rule change, reports Law 360.

But in the legal brief, the agency also seemed to convey that it has little interest in coming after companies that temporarily exceed legal THC limits in the process of making hemp extracts.


The DEA filed two briefs Nov. 29 in related appellate cases, asserting that the 2018 Farm Bill legalizing hemp didn’t change the agency’s status as the regulatory authority for substances over the 0.3% federal legal THC limit.


The DEA had established in an interim final rule issued August 2020 that hemp derivatives over the delta-9 THC threshold would still be considered Schedule I controlled substances according to the Law 360 report.


That might sound obvious to the casual observer, but some in the hemp industry took the gesture as fighting words. That’s because in the process of turning hemp into products like CBD oil, the materials temporarily exceed the 0.3% THC limit, which could put hemp processors at risk of violation.


The DEA had confirmed that hemp derivatives over the delta-9 THC threshold would still be considered Schedule I controlled substances. That might sound obvious to the casual observer, but some in the hemp industry took the gesture as fighting words.

A trade group and hemp company teamed up to file two lawsuits in Sept. 2020 in response to the DEA’s interim final rule. They were the Hemp Industries Association, a nonprofit group of business owners and supporters, and RE Botanicals, a South-Carolina-based hemp company.


The challengers contested the rule on procedural grounds, but also said the DEA was wrongly asserting control over naturally-derived THC that doesn’t fall within the legal definition of “hemp,” nor that of “marijuana” under the Controlled Substances Act (CSA).


DEA Asks for Dismissal Based on ‘Lack of Standing’

The DEA asked the court to dismiss the case, but also noted there was no apparent threat from the DEA to prosecute them.


“The DEA said Monday that the challenges to the rules raised by appellants Hemp Industries Association and South Carolina-based CBD seller RE Botanicals Inc. should be dismissed on the merits and for lack of standing,” Sam Reisman wrote for Law 360.

The agency said the petitioners hadn't cited evidence that they make or sell “substances that contain THC, do not qualify as hemp, and are nonetheless outside the statutory definition of marijuana, much less that DEA has threatened them with prosecution for such conduct.”

“They cite no evidence that, for example, they or their members manufacture or sell substances that contain THC, do not qualify as hemp, and are nonetheless outside the statutory definition of marijuana, much less that DEA has threatened them with prosecution for such conduct.”

— U.S. Drug Enforcement Administration


The DEA also confirmed that it has no authority over hemp.


“The effect of the Farm Bill is to allow individuals and entities to produce and distribute cannabis plants and cannabis-derived materials that are very low in delta-9 THC without registering under the CSA,” DEA lawyers wrote. “The U.S. Department of Agriculture, states, and tribes now have primary responsibility for regulating hemp. The Commissioner of Food and Drugs and the Secretary of Health and Human Services also have regulatory authority.”

To address the petitioner's procedural challenge to the rule change, the DEA clarified that the changes were only made to bring the agency's regulations in line with federal hemp laws. Thus, they argued, no public notice or public comment period was necessary.


“In the rule under review," they wrote, "DEA amended its regulations to conform to [2018 Farm Bill] changes, removing ‘hemp’ from regulatory definitions of controlled substances and acknowledging that a particular FDA-approved drug was no longer subject to CSA control because it qualifies as hemp under the statute.”

Both cases are to be heard, together, before a D.C. appellate court.

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