DEA Publishes Interim Final Rule

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8/24/2020 – The Drug Enforcement Administration (DEA) published an Interim Final Rule (IFR) in the Federal Register on August 21, 2020, to take effect immediately. It potentially has serious implications for the hemp industry, in particular for processors. It interprets the language of the 2018 Farm Bill to say that products derived from (legal) hemp are to be considered schedule 1 controlled substances if they exceed the 0.3% Delta-9 THC limit set by the Farm Bill – even if they are derived from hemp that itself falls within the legal limit.

The IFR states, in part, “[T]he definition of hemp does not automatically exempt any product derived from a hemp plant, regardless of the Δ9-THC content of the derivative. In order to meet the definition of “hemp,” and thus qualify for the exemption from schedule I, the derivative must not exceed the 0.3% Δ9-THC limit. The definition of “marihuana” continues to state that “all parts of the plant Cannabis sativa L.,” and “every compound, manufacture, salt, derivative, mixture, or preparation of such plant,” are schedule I controlled substances unless they meet the definition of “hemp” (by falling below the 0.3% Δ9-THC limit on a dry weight basis) or are from exempt parts of the plant (such as mature stalks or non-germinating seeds). See 21 U.S.C. 802(16) (emphasis added). As a result, a cannabis derivative, extract, or product that exceeds the 0.3% Δ9-THC limit is a schedule I controlled substance, even if the plant from which it was derived contained 0.3% or less Δ9-THC on a dry weight basis.” Implementation of the Agriculture Improvement Act of 2018

The agency is accepting public comments on this IFR. Comments must be submitted by October 20, 2020. Comments can be submitted electronically via the Regulations website.

The full IFR: Implementation of the Agriculture Improvement Act of 2018