Q&A on the DEA IFR for Hemp - Q&A #13 - Are there ways for hemp processors and brokers to mitigate the risk of law enforcement?

On August 21, 2020, the Drug Enforcement Agency promulgated a new Interim Final Rule (IFR) that threatens the burgeoning hemp industry in the United States. I previously published an article about the IFR here, and you can read the full IFR here. To help breakdown some of the more pressing issues in the IFR, I published a fifteen part Q&A you can read here. Question #13 is below.

13. Are there ways for hemp processors and brokers to mitigate the risk of law enforcement?

Yes. Enforcement risk is a continuum. The highest risk activity is openly marketing and transporting bulk hemp materials with delta-9 levels exceeding 0.3% (commonly referred to as “hot” materials). While shipping hot products interstate is higher risk, shipping hot products intra-state may not be lower risk unless your state has specific hemp regulations allowing hot in-process hemp materials. The lowest risk on the enforcement continuum is to utilize extraction processing methods that limit handling of hot materials during extraction and processing, and to never allow hot extracts to leave your facility.

Common-sense processing procedures include labeling hot in-process materials as “IN PROCESS – NOT FOR SALE”, only storing in-process materials in large containers that are obviously unsuitable for consumer sales, and otherwise making it obvious (to a judge or jury) that your processing operation does not involve producing hot consumer products.

Additionally, you should review your website, social media feeds and marketing materials to remove references to THC levels that exceed 0.3%. Also, take down any COAs (certificates of analysis) for extracts that show a delta-9 THC level exceeding 0.3%.