Why does the DEA insist on trying to mess up a good thing?
The Drug Enforcement Admin. is the Law Enforcement agency charged with enforcement and administration of the provisions of the Controlled Substances Act. It was formerly known (prior to the 70s) as the Bureau of Narcotics. It's former director, Harry Anshlinger, played an instrumental role in the passage of the Marihuana Tax act of 1937, which essentially ended (except a brief period during WW II) the Hemp industry in America until the passage of the 2018 Farm Bill.
Advocates for Hemp have long sought the separation of Hemp from its cousin, Marijuana (The plant with the psychoactive effects), in the statutes and (inexplicably) in the Schedule of Narcotics (the way the DEA classifies drugs based on medical purpose) as a Schedule I drug (has no medical purpose and is thus illegal). It seemed that the goal was finally accomplished when the Agriculture Act of 2018 was finally passed an signed into law. Of course, with anything new or changing in the government, there are problems, and potentials for problems.
What are we discussing today?
Despite the title of this article, the purpose here is not simply to bash the hard working men and women of that agency. They have a difficult job, and more than enough work to do. The question is, however, with the amount of other substances and issues in the world of illicit drugs, why does the agency insist upon creating rules and regulations that interject it squarely into an arena that is, as intended by Congress, legal and permissible?
We should note, also, that this article will be discussing various legal theories that have been offered, cases and decisions of the past, and hypotheticals. There will also be some opinions expressed here, which you may or may not agree with. Despite that, we are not lawyers, judges, or for that matter, have any background in law. These are simply presented for your consideration and thought. Please consult your own legal advisor if you have any questions or want advice on these topics. And as always, you are welcome to, RESPECTFULLY, express your views, opinions, and interpretations in the comments.
It's not like the DEA does not have a history of heavy and uneven handed enforcement of Hemp rules and laws. In 2001, the DEA used a loose interpretation of the definition of Industrial Hemp to try and make Hemp seed and oil product illegal if they contained "Any" THC. Of course, Hemp Seeds and Hemp Seed Oil do not contain any Cannabinoids, so this made little or no sense. In the end, the Hemp Industries Association won the case (along with other plaintiffs) in the 9th Circuit Court of Appeals and had the DEA's new rules overturned. (HIA vs. DEA)
Of course, the easy fix for all of this would be to do finally legalize Marijuana. Then, there would be no reason for interpreting definitions and levels of THC, etc. That, however, is not likely in the near future (even though there is popular will, the political will has yet to manifest), and a discussion for another article from a different industry. So, as with any major change in the law or status quo, there are some bumps in the road. The second easiest fix would simply be to get Congress to pass legislation increasing the THC limit to higher than .3%. Perhaps to 1%, which is still not enough to cause any kind of psychoactive effect, but enough to render these arbitrary "limits" moot. Finally, perhaps the Legislative Branch could clarify to certain agencies (i.e., the DEA) that they are to have NO role in the regulation of Hemp and Hemp rules.
What is the issue now?
Hopefully, what we are going to describe here will turn out to be a big "nothing-burger", but it is one of those things that looms in the darkness, and potentially could (potentially) be used by a future actor with less than honorable intentions to make a company, or individuals life difficult. Imagine an individual (or influential group) in the future decides that Hemp is immoral for it's close relationship to Marijuana or does not appreciate the competition Hemp gives their products (sound familiar?). It is not something that has been put into action, nor enforced, and the question of whether it will survive a court-challenge remains open until it finds its way, somehow, into the courts.
Simply stated, there has been a long-simmering issue of so called "Hot Hemp," and in particular, the issue of Hemp in processing Known as Work In Process Hemp Extract or WIPHE) that is being prepared for extraction and processing into Hemp Extract products.
The DEA has issued new Interim Rules that might affect this material and effectively make it illegal should it exceed the .3% THC limit set under the statutes. The result would be, if this was enforced, forcing an entire industry to innovate newer and expensive workarounds, or grind to a halt totally.
How Does the THC Level get "Higher" than .3%?
First, lets cover some definitions:
WIPHE - Work In Process Hemp Extract, or the Hemp material which is being processed, after harvest and before Extraction when the seeds, stalks, etc. are removed, for use in making Hemp Extract Products.
Legal Hemp - (Industrial Hemp) Defined as the plant Cannabis Sativa L which contains <.3% Delta-9 THC by Dry Weight.
Dry Weight - Exactly as it sounds, the weight of the plant material before it has been processed for Extraction and manufacture. (Extraction, by definition, would render the product "wet".
"Hot Hemp" - by definition, considered Marijuana, this is Hemp that exceeds the .3% THC limit by dry weight.
Biomass - The plant material which is prepared and ready to be processed for Extraction of Hemp Extracts.
Now what is the issue:
It all boils down to a matter of math, really. By definition, the harvested material is "legal" if it is <.3% Delta-9 THC concentration when it is tested. However, all of this harvested material includes the seeds, and other non-Cannabinoid producing/containing parts of the plant. Prior to processing for extraction, all of these other parts (seeds, etc.) are removed from the harvested material. The resultant WIPHE is still considered "dry" (It is not considered "wet" until it is rendered into a solution to be placed into the Extractor), but because some of the dry weight has been removed (taking no THC with it) the resultant concentration of THC (by "dry mass") is raised, potentially to higher than the limit defined by statute of .3%.
The result, this WIPHE material would be defined by statute as "Marijuna" and thus be a Schedule I Controlled Substance. Subject to seizure and enforcement upon the individuals and entities that were processing it.
Why does the DEA have ANY Say in the matter?
The Farm Bill of 2018 clearly put the onus of regulating the Hemp Industry onto two agencies (the USDA and FDA) and took it out of the arena of the DEA, right? After all, it clearly struck Industrial Hemp from the Schedules of the CSA.
Well, consider this:
The US Department of Agriculture (USDA) oversees and regulates the GROWTH of Hemp. It's responsibility essentially ends once the crop is harvested.
The Food and Drug Administration (FDA), which admittedly has been slow on the uptake and promulgation of regulations and guidance, would have responsibility over the regulation and safety of HEMP EXTRACT PRODUCTS in their finished state (including their manufacture) Although the safety of raw materials may be an issue, the ingredient in question is the actual Hemp Extract that goes into the product, not the WIPHE that goes into making the Extract..
By definition, WIPHE material is caught in a nexus somewhere between the two, not being grown, and not ready to use as a finished product or ingredient. This is all the opening they need, really. If an overzealous agent can get a sample of the WIPHE tested and determined to be >.3% THC, they can classify it as Marijuana and seize it.
However, clearly it is not a material that is available to the public in any final form, and although not explicitly spelled out, it can be interpreted that the legislation legalizing Hemp took this state into account, making this new rule even more baffling and unnecessary.
Is this REALLY a concern though?
The short answer, hopefully never. It is, however, one of those nebulous "things" that will exist out there until someone has a reason to challenge it, or use it to achieve some nefarious goal or outcome that harms the industry.
Is it likely that anyone in the industry may ever be affected by this interpretation? Probably not. Like we said earlier, the DEA has plenty on their plate as it is, and the trend is that someday, in the future, the Federal government will legalize Marijuana, rendering this (and many other) of these discussions irrelevant.
Being pro-active is better than being re-active. Why not prevent a problem before it rears its head and write a set of regulations that make sense and do not allow for future abuses?
What can we do?
In nutshell, make your voice heard. Every federal agency that publishes rules and regulations has a period that allows for public comments as to the substance and opinion about that particular item will affect them personally and/or in business. Lawyers, Businesses and their associations, and members of the public are invited to submit comments for the agency to use in crafting the final version of their regulations.
These comments are accepted via a government run website which you can access by Clicking Here. For your comments to be handled properly, refer to “RIN 1117- AB53/ Docket No. DEA-500” on all correspondence.
There is an voluminous library of laws and regulations that govern the way we live, work, and make and buy things. There is an entire profession built around interpreting and arguing about the intent and meaning of these words. There is yet another profession which interprets and decides the rights/wrongs of any conflicts arising thereof. But if said rule could be crafted properly in the first place, before it generates an issue, the rule can be written in such a way that it is not ambiguous, leaves no room for shady interpretation (or to be taken advantage of later) and prevents activating this entire profession to determine "what was really meant." Would that not be to everyone's advantage?
DEA JUST DROPPED A BOMB ON THE HEMP INDUSTRY. PART 1: HEMP EXTRACT; by Rod Kight, August 20, 2020
DEA JUST DROPPED A BOMB ON THE HEMP INDUSTRY. PART 2: DELTA-8 THC; by Rod Kight, August 20, 2020
ROD SPEAKS AT INDUSTRIAL HEMP SUMMIT; Kight on Cannabis, February 28, 2020
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