The 2018 Farm Bill legalized hemp and its derivatives, as long as the delta-9 tetrahydrocannabinol (THC) level remains below 0.3%. Thus, allowing hemp to be removed from the list of Schedule I substances. Primarily hallucinogenic drugs, Schedule I substances are regulated by the Drug Enforcement Administration (DEA). However, if hemp contains greater than 0.3% THC, this falls under the DEA’s jurisdiction and is considered illegal. Recently, on August 20, the DEA issued an Intern Final Rule (IFR) which raises serious concerns for the hemp industry and its supporters.
This concern involves the DEA’s treatment of so-called “work-in-progress” hemp extract. During the intermediate stages of processing hemp, the extracts can temporarily exceed 0.3% THC. The 2018 Farm Bill defined hemp based on its THC concentration as starting plant material and in its finished form.
However, the new IFR appears to treat hemp as a Schedule I controlled substance at any stage during which its THC concentration exceeds 0.3%. If the IFR stands as is, this would create industry wide negative consequences. The DEA could then presumably take action against hemp extract manufacturers during the processing stage, even though the ensuing manufacturing process lowers the THC or removes it altogether so as to be in compliance with federal law.
Importantly, it is not necessary to regulate the measurement of THC in a stage of processing that is not consumable. Therefore, the DEA does not need such a restrictive regulation and should amend the IFR accordingly, so as to prevent unintended consequences.
A DEA spokesman has assured the hemp industry that its enforcement priorities lie elsewhere, and the agency is “evaluating its policy options.”
Currently, the IFR is in the public comment process which will conclude on October 20. The DEA has already received over 1,500 comments from industry stakeholders and consumers. We encourage our customers to submit individual comments to the DEA before October 20. You may submit comments to the DEA here.