Hemp Is Not Marijuana… Unless You Ask The DEA

This article was originally published on Hoban Law Group, and appears here with permission.

DEA Tries to Define Hemp

If you’re a hemp business, you probably understand the victory that came with Congress passing the 2018 Farm Bill. As most industry players know, this piece of federal legislation expressly confirmed that hemp is excluded from treatment as “marihuana” at the federal level. Importantly, the 2018 Farm Bill also more broadly defined hemp to include references to “cannabinoids, derivatives and extracts,” which definition expanded the previous meaning of hemp under federal law.

Hemp and the DEA

Not surprisingly, the DEA is, yet again, making an attempt to exceed its authority by concluding that any hemp derivative, extract, or product that exceeds the 0.3% Delta-9 THC limit is a schedule I controlled substance, even if that hemp derivative never makes it into the consumer’s hand.

The DEA has published its Interim Final Rule seeking to codify the statutory amendments to the federal Controlled Substances Act (“CSA”) made by the 2018 Farm Bill. While the rule is stated by the FDA to implement regulatory controls over marihuana, tetrahydrocannabinols, and other marihuana-related constituents by merely “conforming” its regulations to the statutory amendments to the CSA which have already taken effect. The rule very likely goes beyond what Congress anticipated when it passed the 2018 Farm Bill.

In its rule, the DEA has concluded that “the definition of hemp does not automatically exempt any product derived from a hemp plant, regardless of the delta-9-THC content of the derivative.” The DEA believes that in order to meet the definition of “hemp,” and thus qualify for the exemption from schedule I, the derivative must also not exceed the 0.3% Delta-9-THC limit.

DEA and “Marihuana”

The DEA further emphasized that the definition of “marihuana” continues to state that “all parts of the plant Cannabis …

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