Photo by Kym MacKinnon on Unsplash

The DEA published an interim final rule (IFR) late last week conforming its own regulations to meet Congress’ 2018 de-criminalization of hemp. The Agriculture Improvement Act of 2018 (the “2018 Farm Bill”) removed hemp from the Controlled Substances Act (CSA), and DEA’s recent action purports to realign the agency’s own regulations with the now two-year-old federal legalization of hemp.

However, hemp industry insiders have called the IFR an existential threat to their new and booming industry. Among other issues, processors are concerned that the IFR re-criminalizes in-process hemp extract that may temporarily contain a higher percentage of delta-9 THC than the hemp plant from which it was derived. Additionally, some in the industry are concerned that the IFR criminalizes delta-8 THC (an increasingly important segment of the legal cannabinoid market) derived from legal hemp plants. The threat to delta-8 comes from language in the IFR relating to “synthetic” cannabinoids as Schedule I controlled substances, and whether or not DEA would attempt to prosecute delta-8 THC derived from hemp as a “synthetic” cannabinoid.

As any interim final rule, the DEA’s IFR became effective upon publication. However, the agency will accept public comment on the IFR through 10/20/20 (60 days after publication). The DEA encourages electronic submission of all comments, through the Federal eRulemaking Portal. Access the portal at http://www.regulations.gov. All comments received by the DEA will be considered public record. An electronic copy of the IFR is available at https://www.regulations.gov/document?D=DEA_FRDOC_0001-0291.

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