Recap: The DEA Interim Final Rules

By Trevor Yahn-Grode, Data Analyst, New Frontier Data

With the comment period for the DEA’s Interim Final Rule (IFR) on hemp production set to expire on October 20, here is a recap of the agency’s controversial policy stance.

Work in Progress Hemp Extract

The most controversial part of the IFR is the DEA’s statement that “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.”

While seemingly innocuous, the implications of this passage could be severe. That is because, using contemporary cannabinoid extraction methodology, it is impossible to effectively control THC levels at all parts of the extraction process. Even though THC is eventually remediated out of the product, a temporary spike in THC levels is a normal and necessary part of the process when synthesizing CBD.

The DEA’s stance is essentially that, although CBD products are perfectly legal under the 2018 Farm Bill, the process required to manufacture these products at scale is illegal. Should the IFR be enforced as currently written, all major CBD manufacturers operating today would technically be in violation of the Controlled Substances Act (CSA), and thus theoretically open to criminal liability.

It is important to note that, though the comment period is ongoing, the DEA claims that the policy stance has been in effect since the passage of the 2018 Farm Bill.

Delta-8 THC

Delta-8 THC (D8 THC) is a cannabinoid found in hemp that has garnered significant commercial interest since the legalization of hemp production. D8 THC is purported to produce psychoactive effects like Delta-9 THC (i.e., responsible for users’ experiential “high”) but is not technically a controlled substance under the CSA, as the CSA deals only with D9 THC.

Despite that, the DEA’s IFR claims that “[f]or synthetically derived tetrahydrocannabinols, the concentration of delta-9 THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinols remain schedule I controlled substances.”

While this is not a surprising stance for the DEA to take, it is an extrajudicial one. The 2018 Farm Bill defines hemp as “Cannabis Sativa L. and any part of that plant, including… all derivatives, extracts, [and] cannabinoids…with a delta-9 tetrahydrocannabinol concentration of not more than 0.3% on a dry weight basis.

Based on that language, D8 THC clearly falls qualifies as a legal derivative of hemp and is not a controlled substance, and yet the DEA has declared it one, regardless.

Lawsuit

To date, the DEA has received over 2,500 comments from hemp stakeholders expressing their opposition to the IFR. While the comment period remains open through October 20, the CBD industry has launched a preemptive lawsuit against the DEA. On September 18, the Hemp Industries Association and CBD manufacturer RE Botanicals filed suit against the DEA, claiming that the agency is exceeding its authority, and that its IFR violates the 2018 Farm Bill. The lawsuit is pending.

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