The DEA continues it’s trend of pleasing no one this week – several members of Congress have issued a public letter to the DEA calling for reconsideration of the controversial Interim Final Rule it issued in August regarding the classification and definition of cannabis and cannabis extracts. Additionally, a Wyoming company filed a multi-million dollar lawsuit against the DEA alleging seizure and destruction of legal hemp crops that the DEA believed to be illegally grown marijuana. The biggest point of contention of the suit rests on the fact that the DEA made little to no attempts to test or verify the crop as an illegal substance before destroying it.

New York is taking aggressive action to regulate CBD and cannabis-derived products. Going against the FDA’s position that cannabis and cannabis-derivatives may not be legally added to food or beverage, New York issued significant regulations allowing for such products as long as they follow the proposed rules. Such regulations include packaging, point of sale and concentration requirements be met before a product may be lawfully sold within the state. New York is the latest of several states acting in the continued absence of clear guidance from the FDA.

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9 Members of Congress Agree the DEA’s New Rules Regarding Cannabis are Problematic – Letter Calls for DEA to Address Concerns Immediately

Last week, 9 members of Congress issued a letter to the U.S. Drug Enforcement Agency expressing concern over the Interim Final Rule (IFR) issued by the DEA in August. The IFR has caused an uproar in the cannabis industry, especially for those focusing on derivatives. Several lawsuits have been filed by the industry against the DEA. The common point of contention is that the DEA’s IFR goes beyond the 2018 Farm Bill in terms of definitions, the result of which is making legal products potentially illegal.

The 2018 Farm Bill legalized hemp along with its derivatives, extracts and cannabinoids. In order to extract these lawful plant materials from hemp, the hemp plant must go through an extraction process. As such, though it is not stated explicitly, it has been assumed, and much money spent on that assumption, that the extracts, derivatives and extractions of cannabinoids were also legalized.

The DEA’s IFR failed to recognize this nuance in the legislative intent of the 2018 Farm Bill – the IFR states: “any such material that contains greater than 0.3% of Δ9-THC on a dry weight basis remains controlled in schedule I.”

Furthermore, the IFR fails to acknowledge the well-known fact that the process by which hemp is extracted into derivatives, extracts and cannabinoids can, and almost always, results in increased delta-9 THC levels, even if the finished hemp product meets the lawful THC threshold imposed under federal law. This means that, pursuant to the IFR, extracting hemp may cause hemp processors to temporarily possess a controlled substance, which would clearly violate the legislative intent of the 2018 Farm Bill.

The Congressional members echo these statements and state that “many states are only just starting to develop hemp programs and realize the full potential of the hemp industry and other related markets like CBD… Our concern with the IFR centers around language therein that could be interpreted to make the process of extracting hemp into derivatives, extracts, and cannabinoids illegal according to the DEA.”

The DEA has yet to respond publicly to the numerous criticisms issued against its IFR. Perhaps a public urging from Congress will encourage some clarity from the DEA. Perhaps not.

New York Issues Regulations for Selling Food, Drinks and Vapes Containing Hemp Extracts

New York’s state health department has released regulations for making and selling hemp extracts in foods, drinks and vapes. Issued last week, the regulations fly in the face of the FDA allowing for the sale of ingestible products containing CBD and other cannabinoids.

The health department is accepting public comment on the regulations between Nov. 10 and Jan. 11, 2021.

The regulations outline regulations regarding THC concentration, dosage and packaging. The following are a sample of the regulations:

  • “intermediate sales” between licensed hemp processors within New York state can be up to 0.3% THC.
  • products sold to consumers can’t contain more than 0.3% THC.
  • CBD-infused food and beverages can’t contain more than 25 milligrams of cannabinoids, including CBD.
  • Packaging can’t be made to attract minors.
  • Products can’t be mixed with alcohol or tobacco.
  • Products can’t be sold in patches, inhalers or as injectables.

New York is one of many states taking matters into their own hands regarding the regulation of cannabis and cannabis derivatives. With no guidance from the FDA, states are forced to create their own standards, continuing to drive up the cost-of-doing-business for those in the cannabis industry.

DEA Seizes Legal Hemp Crop – Destroys $3 Million in Hemp and Gets Sued

A Wyoming hemp company, Agro Dynamics, is suing the U.S. Drug Enforcement Administration (DEA) and police in southern California for destroying more than $3 million worth of hemp they believed to be marijuana, despite much evidence to the contrary.

The lawsuit claims that local and federal officers raided the company’s facilities in September 2019 after an aerial inspection revealed what they believed to be a marijuana field. There is no evidence that either law enforcement agency investigated whether or not the grow was a registered hemp operation. The lawsuit states that it was, in fact, a registered hemp grow.

The facts of the lawsuit go on to claim that, “upon (police) arrival on the premises, a tenant in possession advised the officers that there was a legal registration issuance from the County of San Diego for the hemp growing on the premises. Law enforcement disregarded this information and continued to seize and destroy all plants that appeared to be marijuana.”

The allegations cited violation of the Fourth Amendment as a result of unreasonable search and seizure, and violation of the Fifth Amendment for confiscating legal property without proper remuneration. Additionally, the suit cited violation of the California Constitution and the California Tort Claims Act.According to Agro, the plants destroyed were below the legal limit of 0.3% THC. Agro claims that, in total, police destroyed 3,000 pounds of hemp worth about $3.45 Million.