On April 19th, in cases with major ramifications for the hemp extracts industry, attorneys for the Hemp Industries Association and co-plaintiffs RE Botanicals will deliver oral arguments to a D. C. Circuit panel centering on DEA’s 2020 interim final rule that purports to regulate hemp manufacturing byproducts that go “hot” hemp during the production process.
In August of 2020, the Drug Enforcement Administration published its Interim Final Rule (IFR) on the Implementation of the Agricultural Improvement Act of 2018, making it effective immediately, and without allowing a Public Comment period in advance. Among other things, the Rule classifies Intermediate Hemp Exract (IHE) and Waste Hemp Material (WHM) that exceeds the .03% delta 9 THC limit –both industrial by-products created during the manufacturing process that are never available to consumers– as Schedule 1 substances.
HIA filed a public comment in the Federal Register in opposition to the DEA’s rule, stating in part that:
The DEA is not a legislative body, and has no power to rewrite laws established by Congress and duly signed by the President of the United States. Furthermore, the process for adding a substance to the CSA is unambiguous, and the Ninth Circuit has already rejected the DEA’s attempt to circumvent the statutory scheduling process in its 2004 ruling, saying that “The DEA’s action is not a mere clarification of its THC regulations; it improperly renders naturally-occurring non-psychoactive hemp illegal for the first time.”
It closed with this important point:
The DEA’s Interim Final Rule, issued two years after enactment of the law it purports to interpret, attempts to schedule an agricultural product the consumption of which has never resulted in a single recorded death by overdose. By comparison, in 2018 (the most recent year for which national data is available) America was losing 128 people per day to opioid overdoses. If that trend has held steady, more than 75,000 of our friends, family, colleagues, and neighbors have overdosed by opioids since the passage of the 2018 Farm Bill. We respectfully suggest that the DEA could more effectively serve the American public if it would cease engaging in efforts to regulate hemp products and instead refocus its limited resources of time and tax dollars on the ongoing and severe issues that do reside clearly within its scope of responsibility.
You can review the full letter here.
Left unchecked, the DEA’s assertion of it authority in this fashion means more than just onerous licensing requirements for manufacturers. It discourages sorely needed research, creates barriers to investments, causes costly confusion in the marketplace that impacts everyone from farmers to consumers, and empowers local law enforcement to treat retailers unfarily.
Reprising its historic role as defender of the hemp industry, the HIA and its allies crafted a legal strategy to push back against the overreach by the DEA, filing two lawsuits in federal court.
This is the fourth time the HIA has challenged the Drug Enforcement Administration’s unfair treatment of the hemp industry in Federal Court, with outcomes that protected hemp oil and CBD from that agency’s overreach. But the DEA’s hostility towards the hemp industry has a long history: