The Drug Enforcement Administration (DEA) has filed briefs in two hemp industry lawsuits opposing requests to stay its recent rule giving hexahydrocannabinol (HHC) a distinct drug code under the Controlled Substances Act (CSA).
The agency maintains HHC was already Schedule I before the rule; the new action merely creates a separate listing to enable production quota management. "The rule does not affect HHC's previous status as a schedule I substance—all it does is separately list HHC and give it a separate drug code," DEA's briefs said. The agency also argued the companies "fails to meet any of the factors required to show that a stay pending review would be warranted."
HHC occurs in trace amounts in cannabis but is mainly produced by hydrogenating cannabidiol (CBD). DEA holds that the 2018 Farm Bill's legalization of hemp derivatives with less than 0.3% delta-9 THC applies only to naturally occurring cannabinoids. DEA Administrator Terrance Cole signed the rule; HHS concurs with the listing.
Bluestar Operations, LLC challenged the rule in the U.S. Court of Appeals for the Fourth Circuit, which previously found THC-O-acetate federally legal. Its complaint states: "Congress intentionally employed expansive statutory language and did not prohibit cannabinoids subjected to ordinary extraction, refinement, conversion, hydrogenation, distillation, or similar manufacturing processes commonly utilized throughout the hemp industry." Bluestar's response brief says DEA is "unable to defend the merits of treating hemp-derived HHC as a Schedule I controlled substance—a position contrary to binding Circuit precedent which this Court rejected."
IHC Investments, Inc. filed in the U.S. Court of Appeals for the Ninth Circuit, which previously ruled the 2018 Farm Bill encompassed delta-8 THC. David Sergi, IHC Investments' attorney, said in a Thursday press release that DEA's action directly conflicts with the 2018 Farm Bill and has caused contract cancellations, loss of banking relationships, and potential destruction of inventory.
Both petitions invoke the major questions doctrine; Bluestar notes the ban "carries enormous economic and political significance affecting a nationwide hemp industry involving billions of dollars in commerce." The UN Commission on Narcotic Drugs added HHC to Schedule II of the 1971 UN Convention on Psychotropic Substances, with the U.S. the only country to abstain.
Under a spending bill signed by President Trump, hemp's federal definition will narrow in November, limiting legal products to 0.4 milligrams of total THC per container after November 12. A DEA marijuana rescheduling hearing begins next week.
