On August 21, the Drug Enforcement Agency (the “DEA”) released an Interim Final Rule (the “Rule”), which, in part, suggests that in-process hemp extract shall be treated as a schedule I controlled substance during any point at which its THC concentration exceeds 0.3 percent on a dry weight basis. “Any point” includes even fleetingly during the processing phase and includes situations where the THC percentage is brought back into legal compliance for the finished product.

In response to this threat, close to 2,500 hemp stakeholders have already expressed their opposition to the Rule by submitting comments via the federal public docket. But some have taken their opposition one step further by suing the DEA. On Friday, September 18, the Hemp Industries Association (“HIA”) and RE Botanicals, a South Carolina hemp CBD manufacturer, filed a petition against the DEA and its acting administrator, Timothy Shea, in the U.S. Court of Appeals for the District of Columbia.

The petitioners claim that the Rule is unlawful because it exceeds the DEA’s authority and violates the Agriculture Improvement Act of 2018 (the “2018 Farm Bill”). Specifically, the Rule contradicts the plain language and the intent of the 2018 Farm Bill, which legalized hemp,

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