Vibe Check: What's The Deal With The DEA?

Updated: Sep 6

Illinois Hemp Growers Association


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Our CEO Rachel Berry was recently interviewed On the 100th episode of the Industrial Hemp Podcast. She talks about what motivated her to start the IHGA and her experiences with hemp farming and advocacy in Illinois. She also explains why there’s still stands of feral hemp growing in Illinois and across the Midwest, sometimes growing nearly twenty feet tall.


US Hemp Building Association

On September 2nd Rachel also Interviewed as a candidate for Director At Large position on the US Hemp Building Association's Board of Directors. The purpose of the USHBA is to support and advocate for hemp building professionals, hemp building projects and hemp building materials in the United States. The interview and live streams are now up!


Illinois Stewardship Alliance Virtual Storytelling Slam

We here at the IHGA and the Illinois Stewardship Alliance would like you to know that Sunday October 4th the ISA is hosting an inaugural Virtual Storyslam! This 1 hour event is free and there will be contests, inspiring stories, and an amazing auction!


DEA Updates Hemp Industry with Confusing Interim Final Rules

On August 21st the DEA issued an interim final rule regarding the implementation of the Agricultural Improvement Act of 2018 also known as the 2018 Farm Bill.


There has been quite an uproar in the hemp industry over this IFR, and we recommend you read the comments on the regulations.gov website to get a sense of what people are interpreting it to mean.


At first glance it may appear that the DEA is making an interpretation based on a bad faith reading of the law and an attempt at outlawing two popular aspects of the hemp industry:


The initial stages of hemp extraction for CBD where Δ9-THC concentrations temporarily exceed 0.3%
Δ8-THC which is currently being commercially produced by isomerization of CBD.

Vibe Check


Upon further inspection, in our opinion this interim final rule does exactly what it says it’s supposed to do. In fact, it just kindly reiterates what the 2018 Farm Bill made into law:


“This rulemaking makes four conforming changes to DEA's existing regulations:


  1. It modifies 21 CFR 1308.11(d)(31) by adding language stating that the definition of “Tetrahydrocannabinols” does not include “any material, compound, mixture, or preparation that falls within the definition of hemp set forth in 7 U.S.C. 1639 o.”

  2. It removes from control in schedule V under 21 CFR 1308.15(f) a “drug product in finished dosage formulation that has been approved by the U.S. Food and Drug Administration that contains cannabidiol (2-[1R-3-methyl-6R-(1-methylethenyl)-2-cyclohexen-1-yl]-5-pentyl-1,3-benzenediol) derived from cannabis and no more than 0.1% (w/w) residual tetrahydrocannabinols.”

  3. It also removes the import and export controls described in 21 CFR 1312.30(b) over those same substances.

  4. It modifies 21 CFR 1308.11(d)(58) by stating that the definition of “Marihuana Extract” is limited to extracts “containing greater than 0.3 percent delta-9-tetrahydrocannabinol on a dry weight basis.”

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. Accordingly, there are no additional costs resulting from these regulatory changes.”


The Initial Stages of Hemp Extraction

The confusion over the legality of the process of CBD extraction comes from this part of the IFR:

...the definition of hemp does not automatically exempt any product derived from a hemp plant, regardless of the Δ9-THC content of the derivative. In order to meet the definition of “hemp,” and thus qualify for the exemption from schedule I, the derivative must not exceed the 0.3% Δ9-THC limit. The definition of “marihuana” continues to state that “all parts of the plant Cannabis sativa L.,” and “every compound, manufacture, salt, derivative, mixture, or preparation of such plant,” are schedule I controlled substances unless they meet the definition of “hemp” (by falling below the 0.3% Δ9-THC limit on a dry weight basis)…”

“…As a result, a cannabis derivative, extract, or product that exceeds the 0.3% Δ9-THC limit is a schedule I controlled substance, even if the plant from which it was derived contained 0.3% or less Δ9-THC on a dry weight basis.”

You can see how this might lead to some confusion because the 2018 Farm Bill specifically intended to legalize hemp cannabinoids and extracts:

‘‘(1) HEMP.—The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

What Congress was saying with the Farm Bill was that hemp and anything you can do with hemp excluding intending to produce a product with more than 0.3% Δ9-THC is now legal.

What the DEA is saying is that the molecules of Δ9-THC on hemp plants are still technically illegal because they are 100% Δ9-THC by dry weight. They are not saying they are going to raid every hemp processor in the US. They are gently reminding us that thanks to the passage of the 2018 Farm Bill and its arbitrary definition of what legal hemp is, our nation's cannabis laws now amount to unenforceable mass confusion.

Right now, most State regulators can’t even effectively enforce THC limits on farmers let alone enforce traceability of input crops or THC content in extractions on processors. The FDA can’t keep up with the amount of unsubstantiated claims and inaccurate labeling that is occurring with CBD consumer products. The DEA isn’t capable of monitoring every hemp processor to ensure that they are not abusing what is technically a schedule 1 substance, nor do they want to.

This interim final rule from the DEA isn’t going to change the way they are currently enforcing these schedule 1 technicalities within the hemp industry. They are depending on the States to enforce their own programs. The States aren’t busting people for producing or selling crude CBD oil and they won’t be starting now because of this IFR.

  • People have been selling and transporting crude CBD oil with much greater than 0.3% Δ9-THC content openly, within and across state lines for several years now.

  • The people who are buying crude CBD oil aren’t buying it to consume it undiluted in an attempt to get high off the 2 – 3% Δ9-THC by weight it contains.

  • The intent of both parties is always to create the end result of a legal finished product.

Our advice to anyone who thinks this could affect them or their business: If you’re selling crude CBD oil, you should have a hemp processing license and you should only sell it to people who also have a hemp processing license. If you’re a licensed hemp processor doing extraction, you should reduce any large stockpiles of crude CBD oil you currently have and consider a continuous-flow extraction and refinement process going forward.

Δ8-THC


The interim final rule continues to softly serve up confusion. Let’s look at the relevant section that has people questioning whether or not Δ8-THC is legal:

The AIA does not impact the control status of synthetically derived tetrahydrocannabinols (for Controlled Substance Code Number 7370) because the statutory definition of “hemp” is limited to materials that are derived from the plant Cannabis sativa L. For synthetically derived tetrahydrocannabinols, the concentration of Δ9-THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinols remain schedule I controlled substances.”


There seems to be some confusion regarding whether or not Δ8-THC qualifies as a synthetically derived tetrahydrocannabinol. The short answer is: it doesn’t.


The long answer is Δ8-THC naturally occurs in and can be prepared from hemp and therefore cannot be considered a synthetic cannabinoid. It doesn’t matter that Δ8-THC is controlled under the Controlled Substances Act under Tetrahydrocannabinols. It doesn’t matter that commercially producing Δ8-THC from hemp requires chemical synthesis in the form of isomerization.


It doesn’t matter because the 2018 Farm Bill didn’t just define hemp. In it’s very last mention of the word hemp in the whole bill it amended the definition of tetrahydrocannabinols in the Controlled Substances Act:


(b) Tetrahydrocannabinol.--Schedule I, as set forth in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)), is amended in subsection (c (17) by inserting after ``Tetrahydrocannabinols'' the following: ``, except for tetrahydrocannabinols in hemp (as defined under section 297A of the Agricultural Marketing Act of 1946)''.(emphasis added)


It’s clear to us that Congress had the intent to legalize all forms of tetrahydrocannabinols produced by hemp excluding Δ9-THC by specifically excepting them from being controlled by the Controlled Substances Act. Again, this is the current definition of hemp:

‘‘(1) HEMP.—The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”(emphasis added)

  • This interpretation of Congressional intent on the matter explains why Δ8-THC has been and is still widely available

  • The mass confusion that ensued immediately upon the issuing of the DEA Interim Final Rules lead some vendors of Δ8-THC products to suspend sales and even file lawsuits in reaction.

  • Our takeaway from this is: Lawsuits are probably an overreaction at this point. Δ8 is great because it works fine without Δ9!

Our Evolving View on US Cannabis Policy

We posted a blog about Cannabis as a Schedule 1 substance a few months ago. In that blog we said:

“If we want to truly eradicate discrimination and promote equality, rescheduling cannabis is an absolute necessity.”

Based on this most recent action by the DEA, we obviously need sweeping cannabis policy reform in the United States. At this point, we’re advocating for the complete removal of cannabis from the controlled substances act.

The M.O.R.E. act, introduced on 07/23/2019 to US Congress, (known as H.R. 3884 in the House & S.2227 in the Senate) will be voted on this month by the House. We generally support the language in the bills and are advocating for their passage by both chambers of Congress.

However, the bill isn't perfect. We object to controlling the legal commercialization of cannabinoids to generate tax revenue. It’s a continuation of the war on cannabis.


The M.O.R.E. Act reinforces the structure of licensing and taxing cannabis as though it were still a controlled substance.


Furthermore, it continues to codify the arbitrary distinction between hemp and cannabis enacted by the 2018 Farm Bill. Regulations should be strictly for the purpose of promoting public safety. Anything else perpetuates illegal markets and will not put an end to the social problems caused by prohibition.

Regarding H.R. 3887


Here in Illinois we have 6 cosponsors of the M.O.R.E. Act out of a total of 18 Reps in the House from our State. No Republican Rep in the State has become a cosponsor. Here’s a list of districts and corresponding representatives that have not cosponsored the bill:


3rd Dan Lipinski (D) Western Springs

5th Mike Quigley (D) Chicago

6th Sean Casten (D) Downers Grove

8th Raja Krishnamoorthi (D) Schaumburg

10th Brad Schneider (D) Deerfield

12th Mike Bost (R) Murphysboro

13th Rodney Davis (R) Taylorville

14th Lauren Underwood (D) Crystal Lake

15th John Shimkus (R) Collinsville

16th Adam Kizinger (R) Channahon

17th Cheri Bustos (D) East Moline

18th Darin LaHood (R) Dunlap


Contact them and ask them what their justification is for not supporting this bill. If they haven’t made it a priority, tell them it is a priority to their constituents regardless of political affiliation. At only 33% of delegates to the House, the current level of support for H.R. 3887 from our Reps does not reflect the level of support that the People of the State of Illinois clearly have in favor of removing cannabis from the Controlled Substances Act.


Call upon your Representatives to cosponsor H.R. 3887 in light of the interim final rules issued by the DEA regarding hemp and the issues cascading across the country from a lack of cohesive national policy on cannabis.

Regarding S.2227


Here in Illinois we have 2 Democratic Senators. Neither one of them has cosponsored the M.O.R.E. Act in the Senate. Contact Dick Durbin and Tammy Duckworth and ask them to justify why they have not gone on the record as a cosponsor of this legislation. If they haven’t made it a priority, tell them their cosponsorship on this is a priority to their constituents.

S.2227 faces much greater opposition in the Senate than H.R. 3387 does in the House. Explain to your Senators that no matter what happens with this legislation, it is our duty to go on the record in support of the M.O.R.E. Act because the national status quo on cannabis is unacceptable.

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