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 the subject of an application 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 Cannabis plant 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 grown, with a concentration in delta -9 tetrahydrocannabinol not exceeding 0.3% by dry weight basis.” 7 USC § 1639o(1).
Last week’s decisions stem from the treatment of hemp by-products under the DEA of August 21, 2020, provisional final ruleImplementation of the Agriculture Improvement Act 2018, which states, in relevant part, “A cannabis derivative, extract or product that exceeds the 0.3% limit of D9-THC is a schedule I controlled substanceeven if the plant from which it is derived contained 0.3% or less of D9-THC on a dry weight basis. » 85 Fed. Reg. to 51641 (emphasis added). its by-products which could exceed the limit of 0.3% THC during the processing of 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. 21-5111and 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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1 Schedule I substances – which include marijuana – are substances that have “high potential for abuse”, “no currently accepted medical use in treatment” and “lack of accepted safety for supervised use medical service”, and are subject to the most severe controls and sanctions. See 21 USC §§ 812(b)(1)(A)-(C), 841.
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