The U.S. Drug Enforcement Agency is asking a federal judge to dismiss a lawsuit that accuses the agency of exceeding its authority with new regulations on hemp products.
The DEA claims the Hemp Industries Association’s complaint follows the wrong procedural path for challenging the regulations, which may limit the amount of psychoactive THC in hemp extracts.
The agency recently scored a legal victory in the case after U.S. District Judge James Boasberg refused to order the DEA to clarify the meaning of the rules, which the hemp industry argues have threatened its survival.
Hemp stopped being regulated as a controlled substance under the 2018 Farm Bill, while marijuana, the mind-altering form of cannabis, remains illegal under federal law.
Cannabis must contain less than 0.3% THC to be considered hemp, but the DEA has also applied that threshold to concentrated substances derived from the crop.
The Hemp Industries Association argues that extracting cannabidiol, or CBD, from hemp necessarily results in interim substances with more than 0.3% THC, though they’re ultimately diluted below that threshold in consumer products.
In recent years, CBD extracts have become a major reason that farmers have planted the crop, as they’re touted for having anti-inflammatory benefits and other healthful properties.
According to the Hemp Industries Association, the DEA’s regulations would criminalize CBD extracts during the manufacturing process, which would “effectively destroy the burgeoning hemp industry.”
The lawsuit claims that DEA lacks the authority to regulate intermediate hemp materials this way under the Controlled Substances Act and the 2018 Farm Bill.
In a court filing, however, the Hemp Industries Association requested that DEA fully explain the scope of the regulations, which would “guide whether plaintiffs should file for a preliminary injunction or instead dismiss this case for lack of a case or controversy.”
The hemp association argued that DEA has made “unclear statements” and “heightened confusion” about the impacts of its regulations on intermediate hemp products, despite opportunities to clarify its intentions.
For that reason, the plaintiff asked for a court order requiring the agency to explain exactly how the rules would be applied to such hemp concentrates, which could have rendered the lawsuit moot.
The judge recently denied that motion because such “expedited discovery” would be inappropriate under administrative procedures for enacting federal policy.
If the plaintiff’s “maneuver” were allowed, anybody could then use the same approach to “force the agency to develop a policy position and support it with legal arguments,” the judge said. “That would be a problematic loophole.”
The DEA has now asked the judge to throw out the case entirely because the proper venue for challenging the regulations is before the U.S. Court of Appeals for the D.C. Circuit.
The Hemp Industries Association has also filed a petition for that appellate court to review the DEA’s regulations, but claims that legal action serves a different purpose.
The petition for review aims to overturn the regulations, while its lawsuit seeks an injunction and “declaratory relief” that hemp processors cannot be held criminally liable for generating the intermediate substances, the plaintiff said.