The U.S. Drug Enforcement Agency (DEA) hit back at the Hemp Industries Association (HIA) Tuesday, restating its position that cannabis extracts that go beyond the limit for THC during the production process fall under the agency’s purview.
DEA and HIA lawyers sparred in a U.S. Court of Appeals in the District of Columbia yesterday.
HIA and South Carolina CBD maker RE Botanicals filed a lawsuit challenging the rule in September 2020. The DEA rule, which has yet to be enforced, would criminalize CBD hemp at any point in the production process when the material’s THC levels rise above the federal limit of 0.3%, under the U.S. Controlled Substances Act.
DEA lawyers told the court Tuesday that hemp can’t legally be processed into an intoxicant, and that the agency intends to control extracts with over-the-limit THC levels. The rule, if enforced, would criminalize standard extraction methods and products derived from hemp that have intoxicating effects.
The DEA restrictions state that “a cannabis derivative, extract, or product that exceeds the 0.3% D9 -THC limit is a Schedule I controlled substance, even if the plant from which it was derived contained 0.3% or less D9-THC on a dry weight basis.”
“If a substance like that is created from a cannabis plant, but the substance itself is high in THC, the substance does not qualify as hemp and is subject to regulation,” DEA lawyer Sarah Carroll argued.
DEA seeks control
HIA lawyer Shane Pennington countered that Congress did not mean to criminalize CBD production when it legalized hemp in the 2018 Farm Bill. Hemp stakeholders have said the DEA rule, issued in August 2020, contradicts the Farm Bill, which they interpret to have exempted hemp and its derivatives from the Controlled Substances Act. They say DEA is wrongly trying to put itself in charge of the CBD industry.
Pennington argued that while hemp extracts often exceed 0.3% THC during processing, producers can adjust the formulas to comply with that limit at further stages in the production process.
Some lawmakers have backed the HIA position, suggesting Congress was aware that intermediate stages of hemp processing can push hemp extracts to temporarily exceed 0.3% THC. That’s why the Farm Bill defined hemp based on its delta-9 THC content stated in terms of dry weight, legislators have said. Dry weight measurements are commonly taken from the hemp plant before processing, and from final hemp-derived products. Legislators have said the DEA must specify its requirements and streamline hemp directives by clarifying the legal means for processing.
Meanwhile, many hemp producers have seemingly sharpened the industry’s conflict with the DEA by turning out hemp-derived products that contain either Delta-9 THC, present in hemp in miniscule amounts, and Delta-8 THC, which is produced from hemp-based CBD through a synthetic process.
Such products are widely available online as producers take advantage of unclear regulations that are expected to be addressed in the next Farm Bill, coming in 2023.
The court is expected to decide the HIA vs. DEA case in three to six months.