Duane Morris LLP – ‘Hot’ Hemp Remains a Hot Topic and Remains at DEA’s Enforcement Discretion

Both lawsuits effectively challenged the DEA’s enforcement of the CSA against hemp and its by-products that may exceed the 0.3% limit for THC when processing hemp, that’s to sayhot hemp.

The United States Court of Appeals for the District of Columbia Circuit dismissed two lawsuits last week, saying ‘hemp in the process’ exceeding 0.3% THC, known as ‘hot hemp’ could still be subject to enforcement by the US Drug Enforcement Agency (DEA).

Marijuana is currently a Schedule I controlled substance under the Controlled Substances Act (CSA). See 21 US Code § 812.[1] The Agricultural Improvement Act (the Farm Bill of 2018) redefined “marihuana” to specifically exclude hemp. 21 USC § 802(16)(B)(i) (“The term “marihuana” does not include…hemp, as defined in Section 1639o of Title 7.”) Hemp is defined as “the plant Cannabis sativa L. and any part of this plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts and salts of isomers, whether or not growing, with a concentration of delta-9 tetrahydrocannabinol not exceeding 0.3% dry weight basis.” 7 USC § 1639o(1).

Last week’s rulings stem from the treatment of hemp by-products under the DEA’s August 21, 2020 Interim Final Rule, implementing the Agriculture Improvement Act of 2018, which states, in the relevant part, “a cannabis derivative, extract or product that exceeds the 0.3% D9-THC limit is a schedule I controlled substance, even if the plant it comes from contains 0.3% or less of D9-THC on a dry weight basis. 85 Fed. Reg. to 51,641 (emphasis added). Both lawsuits effectively challenged the DEA’s enforcement of the CSA against hemp and its by-products that may exceed the 0.3% limit for THC when processing hemp, that’s to say, warm hemp. The claims made it clear that hot hemp necessarily resulted from the processing of hemp and was therefore not intended for application, and such processing where hot hemp is derived from hemp is inconsistent with the goals of the 2018 Farm Bill to legalize hemp for all purposes and remove it from DEA authority.

The dismissal of both actions in the DC Circuit Court means that the DEA retains this enforcement authority, and therefore the cannabis industry should be aware of the potential for the DEA to exercise its discretion to enforce the CSA against hot hemp.

Actions are stylish Hemp Industries Association and Re Botanicals, Inc. v. Drug Enforcement Administration and Anne Milgram, in her official capacity as Administrator of the United States Drug Enforcement Administrationno. 21-5111 and Hemp Industries Association and Re Botanicals, Inc. v. Drug Enforcement Administration and Anne Milgram, in her official capacity as Administrator of the United States Drug Enforcement AdministrationNo. 20-1376.

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If you have any questions about this Alertplease contact Seth A. Goldberg, Jessica Linse, one of the Cannabis Industry Group attorneys, or the firm’s attorney with whom you are in regular contact.

Remarks

[1] Schedule I substances – which include marijuana – are substances that have “a high potential for abuse”, “no currently accepted medical use in treatment” and “a lack of accepted safety for use… under medical supervision”, and are subject to the greatest of rigorous controls and sanctions. See 21 USC §§ 812(b)(1)(A)–(C), 841.

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Jessica C. Bell