Hemp Companies Sue DEA, Challenging Agency’s Claim That Synthetic Cannabis Compound HHC Is Federally Banned

Hemp companies have filed lawsuits challenging the Drug Enforcement Administration’s (DEA) determination that a cannabinoid produced synthetically from components of the cannabis plant is federally illegal.

DEA issued a rule last month saying that while it had already considered hexahydrocannabinol (HHC) to be a Schedule I illegal substance under the federal Controlled Substances Act (CSA), the agency will now giving the compound its own unique drug code for classification.

HHC can be found in trace amounts in cannabis plants but is also synthesized by hydrogenating cannabidiol (CBD). It’s sometimes sprayed on cannabis flowers that are low in delta-9 THC, the most well-known psychoactive component of marijuana, and its psychoactive effects are reportedly similar.

While the 2018 Farm Bill federally legalized hemp and its derivatives with less than .3 percent delta-9 THC on a dry-weight basis, DEA says that only applies to naturally occurring, and not synthetic, cannabinoids. As such, it is the agency’s position that HHC does not fall under the definition of legal hemp.

But that interpretation of federal statute is now being challenged in two separate lawsuits that say the agency’s decision is “unlawful.”

One case, filed by Bluestar Operations, LLC before the U.S. Court of Appeals for the Fourth Circuit, cites a prior ruling in that jurisdiction that found the hemp-derived cannabinoid THC-O-acetate is federally legal despite DEA’s claim to the contrary.

“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,” the complaint says.

DEA’s move “conflicts with the plain text, structure, and purpose of the 2018 Farm Bill and unlawfully inserts limitations Congress neither intended, nor enacted,” it says. The agency’s action has “already caused immediate and concrete harm to the Petitioner, including substantial compliance costs, business uncertainty, reputational harm, disruption of commercial relationships, and interference with ongoing operations.”

“Congress, not executive agencies like the DEA, defines the scope of federal criminal liability. The DEA lacks authority to narrow Congress’s legalization of hemp cannabinoids through interpretive construction unsupported by statutory text.”

The other new suit was brought by IHC Investments, Inc. in the U.S. Court of Appeals for the Ninth Circuit, which previously ruled that the federal legalization of hemp through the 2018 Farm Bill removed restrictions on a wide range of molecules produced by the cannabis plant—including the psychoactive cannabinoid delta-8 THC.

The petition says that “DEA effectively, and thus unlawfully, attempts to expand federal criminal liability through administrative interpretation, unsupported by the plain statutory text of the enabling legislation.”

“Congress did not prohibit converted cannabinoids, hydrogenated cannabinoids, or cannabinoids subjected to ordinary commercial processing techniques,” the complaint says. “Congress did not clearly authorize the DEA to criminalize broad categories of hemp-derived cannabinoids through administrative interpretation.”

Both petitions argue that DEA’s move last month violates the major questions doctrine, a precedent holding that if an agency seeks to decide an issue of major national significance, that action needs to be supported by clear congressional authorization.

The agency’s ban of HHC “carries enormous economic and political significance affecting a nationwide hemp industry involving billions of dollars in commerce,” the litigation brought by Bluestar says.

David Sergi, the attorney leading the new Ninth Circuit case for IHC Investments, said in a press release that the litigation is a “coordinated defense of the rule of law and the stability of the American hemp industry.

“The DEA is attempting to redefine federal law through administrative fiat, causing immediate and irreparable harm to businesses operating in reliance upon the 2018 Farm Bill,” he said. “These lawsuits in two different circuits demonstrate that the threat from the DEA’s unlawful overreach is national in scope.”

DEA, for its part, said in the rule it filed last month that “only tetrahydrocannabinols in or derived from the cannabis plant—not synthetic tetrahydrocannabinols—are excluded from control as ‘tetrahydrocannabinols in hemp.’”

“To clarify further, tetrahydrocannabinols produced through chemical conversion, even when hemp derived are considered synthetically produced for purposes of the CSA, do not qualify as ‘tetrahydrocannabinols in hemp’ under” the 2018 Farm Bill, the agency said.

The Federal Register notice wasn’t the first time that DEA addressed the legal status of HHC.

In a 2023 letter, Terrance Boos, chief of DEA’s Drug and Chemical Evaluation Section, wrote that HHC “does not occur naturally in the cannabis plant and can only be obtained synthetically, and therefore does not fall under the definition of hemp.”

The new filing signed by DEA Administrator Terrance Cole said that “this rule does not affect the continuing status of hexahydrocannabinol as a schedule I controlled substance in any way.”

“This action, as an administrative matter, establishes a separate, specific listing for hexahydrocannabinol in schedule I of the CSA and assigns a DEA drug code for this substance,” it said. “This action will allow DEA to establish an aggregate production quota and grant individual manufacturing and procurement quotas to DEA-registered manufacturers of hexahydrocannabinol, who had previously been granted individual quotas for such purposes under the drug code for tetrahydrocannabinols.”

The DEA notice cited a move last year by an international drug control body to add HHC to Schedule II of the United Nations Convention on Psychotropic Substances of 1971—but the document doesn’t note that when the Commission on Narcotic Drugs (CND) took the action, the U.S. was the only country to abstain from the vote.

DEA said that the U.S. Department of Health and Human Services (HHS) “concurs with the direct listing and drug code assignment of hexahydrocannabinol in the CSA.”

Meanwhile, under provisions of a large-scale spending bill signed by President Donald Trump late last year, the federal definition of legal hemp is set to change in November. Unless that language is altered or its effective date is delayed, as some lawmakers are pushing for, only hemp products with up to 0.4 milligrams of total THC per container will remain legal after November 12.

At the same time, however, the Trump administration is moving to more broadly reschedule marijuana under federal law.

Read the new hemp industry lawsuits against DEA’s HHC rule below: