Late last week, the U.S. Drug Enforcement Agency (DEA) released their Interim Final Ruling on hemp extract that, if passed in October, will have devastating consequences for the CBD industry.
In typical government fashion, the DEA misinterpreted what was stated in the Farm Bill and ran with it, creating a new roadblock for the cannabis industry that makes no sense whatsoever. In short, the DEA ruling prohibits any hemp extract that reach 0.3% or more tetrahydrocannabinol (THC) at any point during the manufacturing process, by categorizing these products as Schedule 1 Narcotics. Did all hemp extract just become illegal?
At first glance, the law makes sense based on the 0.3% cutoff that, arbitrary as it may be, has been around for quite some time. However, this law doesn’t apply to just finished products. If we have a CBD oil for example, that has no THC in the final product and was extracted from legally compliant industrial hemp, it could still be illegal if at some point during the manufacturing process, the THC (temporarily) exceeded 0.3 percent.
Now it makes even less sense, doesn’t it? Well, it doesn’t get much better.
WIPHE and Temporarily Elevated Levels of THC
When creating CBD products, even isolate, they go through a stage referred to as Work-in-Progress Hemp Extract (WIPHE), during which the concentrations of THC temporarily exceed 0.3 percent. Products in the WIPHE stage are only partially processed, and not intended for sale or consumption. Fluctuating levels of cannabinoids is just a normal part of the process and is impossible to avoid. Even during at the most basic levels of production, there will always be a point where the product has more than 0.3% THC.
It is these WIPHE products that are now banned. So, in the process of creating legal products from a legal plant, they briefly enter a stage where they are considered a Schedule 1 controlled substances, and thus are overall illegal. It was always the elephant in the room, but it’s honestly illogical to think that any of that matters, the focus should obviously be on the finished product that ends up in the consumer’s hands.
Dry hemp vs wet hemp
There is quite a bit of confusion whether this applies to products in the WIPHE stage or only completely finished, consumer products. According to the National Hemp Association, “this IFR only refers to consumer products to ensure that they are D9 compliant. It does not address mid-process crude or distillate which often exceeds legal THC levels. So moving/selling those materials across state lines remains ambiguous and problematic. However, while this IFR does not alleviate that concerns it also does not make it worse.”