Hemp Groups Say New DEA Rule Could Hamper Growers

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A group representing hemp growers is suing the Drug Enforcement Administration over a new rule it says could put producers out of business. 

Last month, the DEA issued this new interim final rule, saying it intended to merely fill out the way hemp is regulated. Hemp advocates say it actually goes further than that, creating new authority for the DEA—and have sued, saying this would be illegal.

The 2018 Farm Bill, which legalized the growing of industrial hemp, specified that hemp products with 0.3 percent or lower quantity of THC—a cannabinoid, and the dominant compound in cannabis that creates the high—is legal. That number was arrived at because it is extremely difficult to breed hemp plants with no THC content at all, and because that low percentage is not enough to impair motor skills or perception.

The DEA’s interim final rule on the subject says it aims simply to clear up the details of that 2018 Farm Bill. “This interim final rule merely conforms DEA’s regulations to the statutory amendments to the CSA that have already taken effect, and it does not add additional requirements to the regulations,” the rule reads. 

But various legal scholars, hemp growers, and others have noted that the interim rule actually contains language vague enough to be concerning. Essentially, it does not specify whether that 0.3 percent mark is only to be found in the final consumer product, or whether it can be found during processing. Hemp growers note that sometimes their hemp actually contains higher than that 0.3 percent number naturally, but through processing, it can be diluted or separated in order to create a final product that is within the legal limit. After all, who cares whether the raw material is illegal to sell, when you’re not selling it?

The lawsuit, filed by the Hemp Industries Association and RE Botanicals, a hemp company based in South Carolina, says that this interim rule is illegal. Their argument, according to a press release, is that, contrary to the DEA’s claims, this final rule does in fact exceed the limits of the 2018 Farm Bill. The lawsuit further claims that the DEA did not observe proper procedures enumerated in the Administrative Procedure Act, which is designed to ensure that agencies within the government do not interfere with the rulings of other agencies, among other things.

The lawsuit asks the U.S. Court of Appeals to carefully look into the DEA’s rule to see whether it violates the law.

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