The Drug Enforcement Administration (DEA) is at it again, and this time they are trying to subvert the 2018 Farm Bill and interfere with the rulemaking process governing hemp production and change the definitions of cannabis-related terms in ways that could severely impact businesses.
On August 21, 2020, the DEA published to the Federal Register an interim final rule (IFR) with request for public comments. The IFR purported to implement changes in DEA regulations to align those regulations with the statutory requirements created by the Agriculture Improvement Act of 2018 (AIA). However, we do not believe this to be the case as the DEA’s IFR directly conflicts with the hemp provisions found in the AIA.
Time is running out to tell the DEA to leave the hemp program alone and rescind the IFR. We urge you to submit your comments before the Tuesday, October 20 deadline. You can use your own arguments or incorporate ours (summary below).
The National Cannabis Industry Association is concerned that DEA’s IFR circumvents the rulemaking process as required by the Administrative Procedure Act and asks that this rulemaking be rescinded. As this IFR has already had a direct impact on members of the hemp industry, we submit this comment for the following reasons:
Because the DEA’s IFR goes beyond merely amending the agency’s regulations to conform with the AIA, the exceptions to the APA claimed within the IFR do not apply, and the rule is invalid.
Congress removed all cannabis and cannabis-derived products with a Delta-9 THC concentration of less than 0.3% on a dry weight basis from the jurisdiction of DEA.
There is no current definition of “natural” or “synthetic” in the Controlled Substances Act, and the DEA should clarify that the definition of “synthetic” excludes products derived from hemp.
DEA lacks authority to regulate work-in-progress extracts derived from hemp, even those above 0.3% Delta-9 THC, because Congress approved of Delta-9 THC concentrations greater than 0.3% in work-in-progress extracts, and lawful processing of hemp unavoidably results in concentrations of Delta-9 THC that temporarily exceed this threshold during intermediate steps of the extraction process.
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