Several members of the U.S. Senate and House of Representatives claim the Drug Enforcement Administration (DEA) is criminalizing conduct that runs counter to Congress’ intent in passing the 2018 Farm Bill, which removed hemp from the Controlled Substances Act (CSA).

While an interim final rule (IFR) adopted by DEA “purports to merely implement the 2018 Farm Bill,” it “treats hemp as a Schedule I controlled substance at any point its THC content exceeds 0.3% THC,” Ron Wyden and Jeffrey Merkley, two Democratic senators from Oregon, wrote to DEA Acting Administrator Timothy Shea in an Oct. 22 letter. “However, when Congress passed the 2018 Farm Bill, we understood that intermediate stages of hemp processing can cause hemp extracts to temporarily exceed 0.3% THC, which is why we defined hemp based on its delta-9 THC level.

“Further, we defined hemp’s THC content on a dry weight basis because dry weight measurements are commonly taken from the initial hemp plant and final hemp-derived product,” the senators explained. “In effect, the IFR criminalizes the intermediate steps of hemp processing, which is wholly inconsistent with Congress’ clearly stated purpose and the text of the 2018 Farm Bill.”

In a separate letter to Shea, which Hemp Industry Daily made public, nine members of the House of Representatives expressed concerns over language in DEA’s IFR that “any such material that contains greater than 0.3% of [delta]-9 THC on a dry weight basis remains controlled in schedule I.” Representatives who signed the letter included mostly Republicans from Alaska, Florida, Ohio, Illinois, Virginia and Wisconsin.

Delta-9 THC levels can temporarily increase during the process in which hemp is extracted into cannabinoids, the lawmakers stated in the Oct. 20 letter.

“Thus, the only process for extracting hemp may cause hemp processors to temporarily possess a controlled substance,” the nine representatives wrote to Shea. “If that is the case, the IFR seems to have ignored the clear legislative intent of the Farm Bill in making the processing of hemp into extracts, derivatives and cannabinoids subject to DEA enforcement as a violation of the Controlled Substances Act.”

Congressman Denver Riggleman, a Republican from Virginia, was one of the lawmakers who signed the letter.

"The DEA must specify their requirements and streamline hemp directives by clarifying the legal means of processing hemp products,” Riggleman stated in a press release. “The Farm Bill created new venues of business in this country, and we need to ensure that our hemp farmers have clear directives when it comes to their products."

DEA confirmed receipt of the letters from members of Congress, but the agency declined to comment for this article. 

Joy Beckerman is principal of Hemp Ace International, an industrial hemp consulting firm. She said Congress specified its intent in the 2018 Farm Bill to remove hemp from the authority of DEA.

“Congress not only specifically and deliberately removed hemp and its extracts and derivatives from the Controlled Substances Act, it also purposefully removed tetrahydrocannabinols derived from hemp, with the clear intent to liberate every aspect of hemp from potential criminal entanglement and DEA authority,” she said via email. “Congress was sophisticated in its understanding and careful drafting, and the DEA is overreaching.”

THC implications of extraction

The 2018 Farm Bill—otherwise known as the Agricultural Improvement Act of 2018—defined hemp as containing no more than 0.3% delta-9 THC on a dry weight base. Tim Gordon, chief science officer of Functional Remedies, a Colorado-based provider of full-spectrum hemp oil, explained in an email why hemp processors may exceed that limit.

“THC concentration often exceeds the .3% threshold by the simple act of concentrating the molecule inadvertently,” said Gordon, a member of the board of directors of the Hemp Industries Association (HIA), which recently sued DEA over its IFR. “When cannabinoids are extracted, they all concentrate, and if hemp is measuring .3% [THC] in the raw material, concentrating multiple kilos or pounds of the hemp will also concentrate the THC, causing it to rise above the .3% threshold.”

“Because it is nearly impossible to extract cannabinoids from hemp without raising THC, the IFR raises concerns for hemp processors in particular, especially in cases where 'hot' in-process extract is transported across state lines or stored for further processing," cautioned Amin Talati Wasserman LLP, a law firm advising the hemp industry, in an Oct. 27 emailed update on recent regulatory developments. 

During the cannabinoid extraction process, the concentration of THC may rise to between 1% and 3%, but the hemp at this stage is not for human consumption, explained Annie Rouse, secretary of HIA’s board of directors and chief operating officer of OP Innovates, a manufacturer of cannabinoid products.

“It’s in-process material, and there’s no way around it,” Rouse said in an interview, commenting on the THC exceeding the 0.3% limit. “Unless you … actually genetically remove THC from the plant altogether, everything will become concentrated. The THC increases. The CBD increases. The terpenes increase. It’s just a natural process of extraction.”

To make the hemp ingestible for consumers, it is diluted with a carrier oil, which brings it below the 0.3% THC limit in the finished product, she said.

“In-process hemp extract is not intended to be a controlled substance, and hemp extract processors and manufacturers are not intended to be under the jurisdiction of the DEA,” concluded Beckerman, who, according to her biography, has been “involved in the hemp movement” for more than 25 years. "The ‘Effect on Other Law’ clause within the 2018 Farm Bill’s hemp provisions instruct the ongoing authority of the FDA, and there is nary a mention—anywhere in the Farm Bill—of the DEA.”