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Hemp industry sues DEA over rule implementing 2018 Farm Bill

The Hemp Industries Association expressed concerns that a recently published rule could be interpreted to grant DEA jurisdiction over hemp derivatives that temporarily exceed 0.3% THC during processing but contain less than that amount in final products.

Josh Long

September 22, 2020

2 Min Read
Hemp industry sues DEA over rule implementing 2018 Farm Bill

The Hemp Industries Association (HIA) and a South Carolina-based company recently filed a lawsuit against the Drug Enforcement Administration (DEA) over a rule they allege could produce adverse consequences for the industry.

In a petition filed Sept. 18 with the U.S. Court of Appeals for the District of Columbia Circuit, HIA and hemp manufacturer and retailer, RE Botanicals Inc., requested review of DEA’s interim final rule, “Implementation of the Agriculture Improvement Act of 2018.”

The rule exceeded the authority of DEA and violated the Agricultural Improvement Act of 2018, according to the petitioners.

The Agricultural Improvement Act of 2018—otherwise known as the Farm Bill—removed hemp and its derivatives from the Controlled Substances Act (CSA). But in order to meet the definition of hemp, the plant Cannabis sativa L. and any part of it cannot exceed a delta-9 THC (tetrahydrocannabinol) concentration of 0.3% on a dry weight basis.

According to HIA and RE Botanicals, DEA’s rule clarifies all hemp derivatives or extracts exceeding 0.3% THC remain Schedule I controlled substances. They expressed concerns that the rule could be interpreted to grant DEA jurisdiction over hemp derivatives that temporarily exceed 0.3% THC during processing but contain less than that amount in final products.

“When Congress passed the 2018 farm bill, it explicitly carved hemp and its derivatives out of the Controlled Substances Act so that hemp can be regulated as an agricultural commodity," HIA President Rick Trojan said in a news release. "The DEA’s interim final rule could create substantial barriers to the legal manufacturing of hemp-derived products, a critical component of the hemp supply chain, and devastate the entire hemp industry. Although the DEA states that is not its intention, the rule must be amended to ensure hemp remains an agricultural crop, as Congress intended."

The petitioners also argued DEA administrator Timothy Shea, who is individually named as a respondent along with DEA, issued the rule without following procedures required by law, such as providing the public notice and an opportunity to comment.

Sean Mitchell, a DEA spokesman, said the agency “does not comment on ongoing litigation.”

DEA claimed in its rule that “publishing a notice of proposed rulemaking and soliciting public comment prior to publication are unnecessary in this instance because these regulations merely implement statutory changes over which the agency has no discretion.”

The agency, however, opened a docket to solicit public comment following publication of the rule. To date, the docket includes more than 2,400 comments.

About the Author(s)

Josh Long

Associate editorial director, Natural Products Insider, Informa Markets Health and Nutrition

Josh Long directs the online news, feature and op-ed coverage at Natural Products Insider, which targets the health and wellness industry. He has been reporting on developments in the dietary supplement industry for over a decade, with a special focus on regulatory issues, including at the Food and Drug Administration.

He has moderated and/or presented at industry trade shows, including SupplySide East, SupplySide West, Natural Products Expo West, NBJ Summit and the annual Dietary Supplement Regulatory Summit.

Connect with Josh on LinkedIn and ping him with story ideas at [email protected]

Education and previous experience

Josh majored in journalism and graduated from Arizona State University the same year "Jake the Snake" Plummer led the Sun Devils to the Rose Bowl against the Ohio State Buckeyes. He also holds a J.D. from the University of Wyoming College of Law, was admitted in 2008 to practice law in the state of Colorado and spent a year clerking for a state district court judge.

Over more than a quarter century, he’s written on various topics for newspapers and business-to-business publications – from the Yavapai in Arizona and a controversial plan for a nuclear-waste incinerator in Idaho to nuanced issues, including FDA enforcement of the Dietary Supplement Health and Education Act of 1994 (DSHEA).

Since the late 1990s, his articles have been published in a variety of media, including but not limited to, the Cape Cod Times (in Massachusetts), Sedona Red Rock News (in Arizona), Denver Post (in Colorado), Casper Star-Tribune (in Wyoming), now-defunct Jackson Hole Guide, Colorado Lawyer (published by the Colorado Bar Association) and Nutrition Business Journal.

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