Should You Be Worried About the DEA’s New Hemp Rule?

DEA on hemp

A lot of positivity has been going around in the cannabis world in terms of how far the industry has come the past few years both in the aspect of laws and acceptance. The importance of acceptance is that it will result in a decrease in the criminalization of the natural product. This will then result in a change in the status quo which for now classifies cannabis as a Schedule 1 narcotic drug. The need for this long due acceptance by the FDA in the United States cannot come sooner. This is because, despite the fact that some states have become open to the use of cannabis both recreationally and medically, the stance of the federal government still puts a lot in precarious positions. This is expressed largely in the case of hemp and the new rule that the DEA has brought forth.

A detailed analysis

When it comes to hemp, there has been a lot of room over the years as hemp has not been implicated under the Controlled Substance Act thanks to the 2018 Farm Bill. This has allowed a good number of businesses to flourish in processing and sales of the product as the federal government had legalized the industry and made it easy to work within the stipulated regulations. Much of this seems to be in jeopardy presently as the effect of the new interim hemp rule by the DEA is that it largely makes the processing activities illegal. The implication of this is a huge blow on all in the hemp industry. Predictably there seems to be a lot of worry in the camp of hemp businesses over the new rule. A closer look into the rule will help to explain and show exactly why many seem to be worried about the new rule.

As said earlier, the new interim rule by the DEA implicates many of the regular hemp processing activities under the Controlled Substances Act. The interim rule by the DEA explains that cannabis-derived materials must not have more than 0.3% of delta-9-tetrahydrocannabinol by dry weight. It is common knowledge already that the delta-9-tetrahydrocannabinol level in hemp is far lesser than that of marijuana which is covered under the Controlled Substance Act. At first glance, it is possible that one does not see the difference or change in the new interim rule with respect to the 2018 Farm Bill. However, the language used in the new rule implies that all cannabis derivatives, extracts, or products that are found to exceed the 0.3% acceptable limit of delta-9-THC will be regarded as a Schedule 1 drug. This rule will apply even if such derivatives originate from 0.3% or less of delta-9-THC.

The general interpretation of the 2018 Farm Bill is that hemp contains not less than 0.3% of THC by dry weight and anything that exists above that will be classified under controlled substances. The change in language by the DEA in the new rule offers a change to that. This is due to the fact that a good number of the processing that goes on while processing hemp can result in an increase in the concentration of THC. The common act in the industry that has guided and kept the players in the industry in line with prevalent regulations is dilution. After going through the processors, the processed product is then diluted to keep it within the acceptable 0.3% THC limit that is covered under the 2018 Farm Bill. The fears that are going around presently in the camp of many businesses presently are that with this new rule the DEA can easily fault many businesses. This can be easily done if the DEA seeks to test materials while processing is still ongoing and are yet to get to the final product stage where they are effectively diluted to fall within the acceptable limit.

This is largely why there seems to be a lot of worry among hemp businesses over the new rule. THC concentration is subject to change when affected by heat or temperature as well as during the processing of hemp. Simple processes as well have an impact on the concentration of THC. Separation of parts of the cannabis plants that are rich in THC such as the leaves and flowers from parts that are poor in THC such as the seeds and stems will increase the concentration of THC in such parts. This all culminates in an increase in concentration before heading into the extraction of the required compounds. This is why it is near impossible to meet the present testing requirements for the new rule.

Many stakeholders have given their voice over the present situation of things with the new rule of the DEA. This has seen 30 states give recommendations through the National Association of State Department of Agriculture due to the structure of the rule. One recommendation is that the negligence threshold for the concentration of THC should be increased to 0.5% or 1% in order to accommodate the varying change during the processes. The National Hemp Association is looking to take a calmer approach as they see the new rule as a modification that is still within the spheres of the 2018 Farm Bill. They have said this while still encouraging its member to write letters in opposition to the rule.

Bottom line

The effect of these new rules is bound to affect large companies who have put in a lot of capital to stabilize the industry. When asked about the present situation of the new rule, Special Agent Sean Mitchell the Spokesman of the DEA downplayed the situation and concerns of many by looking to instead focus on the present opioid epidemic. The present situation will not just go away and for hemp businesses, it puts work-in-progress hemp extracts in a very precarious and troubling situation. Different moves are already ongoing in a bid to see how a compromise can be reached concerning the rule with the DEA as it is only when this is done that we can stop to worry.