Understanding the Legal Status of Hemp and its Derivatives: A Deep Dive

In the legal realm, a fine line separates the lawful production and use of hemp from illegal marijuana. In the U.S., this line is drawn based on the concentration of Delta-9-tetrahydrocannabinol (delta-9 THC), a psychoactive component found in the cannabis plant.

  1. Statutory Basis: The 2018 Farm Bill and CSA The distinction stems from the Agriculture Improvement Act of 2018 (commonly known as the 2018 Farm Bill). It amended the Controlled Substances Act (CSA) to exclude hemp from the definition of marijuana. The Farm Bill defines hemp as the plant Cannabis sativa L. and any part of that plant, including the seeds 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. Consequently, any Cannabis sativa L. plant or derivative exceeding this concentration limit is classified as marijuana, a Schedule I controlled substance under the CSA.
  2. DEA’s Interpretation and Public Statements The Drug Enforcement Administration (DEA) has reaffirmed the legal position outlined in the 2018 Farm Bill and CSA through a series of public statements. In a 2021 Town Hall webinar, a DEA representative explicitly stated, “At this time, per the Farm Bill, the only thing that is a controlled substance is delta-9 THC greater than 0.3% on a dry-weight basis.” In multiple public letters, the DEA has confirmed that cannabinoids extracted from the cannabis plant with a delta-9 THC concentration not exceeding 0.3% on a dry weight basis meet the definition of “hemp” and are not controlled substances under the CSA.
  3. Case Law: The Ninth Circuit Court’s Opinion The federal Court of Appeals for the Ninth Circuit recently weighed in on this matter in the context of a trademark dispute, noting that “the only statutory metric for distinguishing controlled marijuana from legal hemp is the delta-9 THC concentration level.”
  4. THCA and the Post-Decarboxylation Test There’s been some confusion surrounding the treatment of delta-9 Tetrahydrocannabinolic acid (THCA), a non-psychoactive cannabinoid that can be converted to delta-9 THC through decarboxylation. Federal law requires a post-decarboxylation test prior to harvesting hemp to account for potential delta-9 THC. However, the DEA has clarified that this test applies only pre-harvest, and no further tests are required post-production. Thus, harvested hemp with a delta-9 THC concentration below 0.3% remains lawful regardless of THCA concentrations or any potential conversion.

In conclusion, the legal demarcation between hemp and marijuana rests on the delta-9 THC concentration. Products derived from cannabis containing delta-9 THC concentrations that do not exceed 0.3% by dry weight are classified as lawful hemp under federal law. However, individual states may have their own regulations, and you should be aware of the laws that apply in your specific locale.

Remember that the information provided here is meant to serve as a general guide, and legal situations can vary widely based on specific circumstances. Always seek personalized advice from a legal professional.

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