What Will Marijuana Rescheduling Mean For Hemp, Which Is Already Fully Descheduled? (Op-Ed)

*“Increased acceptance and understanding could drive greater consumer
demand and foster more mainstream integration of hemp-derived products into
appropriate regulated frameworks.”*

*By Shawn Hauser, Vicente LLP*

The Drug Enforcement Administration’s (DEA) pending reclassification of
marijuana from Schedule I to Schedule III of the Controlled Substances Act
(CSA) marks a historic and long-overdue milestone in U.S. cannabis policy.
This shift acknowledges marijuana’s accepted medical use and relatively low
potential for abuse, standing as a testament to decades of persistent
advocacy and evolving scientific understanding

This reclassification also reveals a critical distinction in the federal
cannabis landscape: marijuana is striving to reach a less restrictive
status, while hemp has already achieved an unscheduled one. Similar
commercial THC products are derived from both sources of cannabis, yet
their regulatory frameworks and persistent federal challenges remain
distinct.

To fully grasp the potential impacts of rescheduling, it is crucial to
recognize that while both marijuana and hemp are derived from the Cannabis
sativa L. plant, their federal legal statuses differ significantly—with
marijuana currently completing the complex process to achieve a less
restrictive scheduled status—while hemp is already federally unscheduled (a
result of congressional action in the 2018 Farm Bill).

This means some cannabis “hemp” is already unscheduled and not subject to
the restrictive provisions of the CSA at all. Rather, hemp operates under a
fundamentally distinct legal framework established by the 2018 Farm Bill.
This landmark law federally legalized hemp plants and their derivatives as
an agricultural crop (rather than a controlled substance), defining hemp
plants as cannabis with less than 0.3 percent delta-9 THC on a dry weight
basis.

*Does the DEA’s Marijuana Rescheduling Affect Hemp’s Legal Status?*

The DEA’s proposed marijuana rescheduling rule expressly states that it
will not affect hemp’s existing federal legal status under the 2018 Farm
Bill. It also does not impact the legal status of THC-containing drugs
already rescheduled out of Schedule I, such as Marinol or Syndros, nor does
it impact the Schedule I status of “previously scheduled synthetic
cannabinoids.”

In short, moving marijuana to Schedule III does not automatically alter the
existing federal legal or regulatory framework for hemp. Hemp cultivation,
processing, and sales will continue to be regulated by their own specific
federal and state regulations, independent of marijuana’s new
classification.

However, there are some direct and indirect impacts worth noting.

*What Are the Direct Legal Differences Between Marijuana and Hemp Under
Rescheduling?*

*1. Marijuana Remains Controlled by DEA, Hemp Remains Unscheduled*

Despite a move to Schedule III, state-legal marijuana dispensaries and
their products will remain federally illegal because Schedule III marijuana
products still require Food and Drug Administration (FDA) approval for
lawful interstate commerce. To date, FDA has approved only one
cannabis-derived drug (Epidiolex) and three synthetic cannabinoid-based
drugs for specific conditions.

Hemp, on the other hand, is already descheduled and commonly sold in
interstate commerce as a legal agricultural commodity rather than a
controlled substance. Despite their different CSA statuses, both hemp and
marijuana THC products, even if rescheduled, face legal risk under the
Federal Food, Drug, and Cosmetic Act (FDCA), which governs the sale of
food, drugs, and cosmetics in interstate commerce.

The cannabis industry has largely operated under FDA’s implied risk-based
enforcement policy for over a decade, under which FDA has not enforced the
FDCA against state-compliant operators and has focused primarily on
companies making “egregious medical claims” or posing severe public safety
issues with unapproved products.

*2. FDA Illegality for Marijuana and Hemp: Why Congressional Action Is
Still Needed*

The FDA has clearly indicated that its existing food and drug regulatory
framework is not sufficient for comprehensive cannabinoid regulation and
has consistently stated that it needs congressional action to appropriately
regulate cannabis. For over a decade, the agency has shown a lack of intent
to deploy its resources toward mass enforcement in the cannabis sector.

This reinforces that the immediate threat for both hemp and marijuana isn’t
from the FDA shutting down state programs, but from the lack of a clear
federal regulatory framework.

While a Congressional Research Service report emphasizes that hemp-derived
CBD might be permitted as a tobacco additive if marijuana is rescheduled
and a company pursued this pathway, such products would still be subject to
FDA marketing authorization and public health assessments. The FDA is clear
that it doesn’t believe its food and drug regulatory framework is
sufficient for cannabinoid regulation, and has consistently indicated that
it needs congressional action to appropriately regulate cannabis.

Some proposed federal regulatory frameworks consider the involvement of
other agencies, such as the Alcohol and Tobacco Tax and Trade Bureau (TTB),
in coordination with FDA, as the appropriate regulatory agency.

*3. Synthetic THC remains a Schedule 1 Controlled Substance, but the
Definition Remains Unclear.*

The proposed rule clarifies that synthetically derived THCs (e.g.,
delta-10-tetrahydrocannabinol) are explicitly excluded from marijuana’s
reclassification and remain Schedule I controlled substances. Although the
law is clear, and DEA has repeatedly opined that certain synthetic
cannabinoids not occurring naturally in the hemp plant are Schedule I
substances, the definition of “synthetic” is not detailed in the CSA and is
likely to continue to be debated and litigated.

The lack of a clear federal definition has forced states to implement their
own “patchwork” of regulations and prohibitions, and many state laws are
unclear. Establishing safe and regulated production of THC and other
cannabinoids produced through synthesis and conversion is a fundamental
issue that must be imminently addressed to ensure public safety.

*4. Marijuana Extract Definition: A Potential Concern for Hemp Derivatives*

The DEA’s proposed rule broadly defines “Marijuana Extract” as derived from
“any plant of the genus Cannabis” containing greater than 0.3 percent
delta-9 THC, “without explicitly exempting hemp-derived extracts.

This broad language could potentially bring hemp products that inevitably
exceed the 0.3 percent limit during intermediate processing into the DEA’s
purview, even if the final product is compliant. Clarifying legal
protections for “Work in Progress” (WIP) materials remains a longstanding
need.

*What Are the Indirect Impacts of Marijuana Rescheduling on the Hemp
Industry?*

While the direct legal changes for hemp are minimal, marijuana rescheduling
is expected to indirectly generate a positive impact and broader momentum
for the entire cannabis sector. These could ultimately benefit the hemp
industry and progress towards effective federal regulation for cannabinoid
products.

*Enhanced Legitimacy and Public Perception*

By moving cannabis out of Schedule I, where it is ludicrously classified as
one of the most dangerous and highly abused drugs without any medical use,
the federal government officially recognizes its medical utility and lower
potential for abuse. This legitimization could be transformative for the
medical community and broader public opinion, chipping away at the stubborn
stigma associated with all forms of cannabis.

The federal government’s acknowledgment of marijuana’s medical use is also
reflected in recent congressional support for allowing physicians
affiliated with the Department of Veterans Affairs to recommend medical
cannabis to qualified patients in regulated jurisdictions.

Increased acceptance and understanding could drive greater consumer demand
and foster more mainstream integration of hemp-derived products into
appropriate regulated frameworks.

*Increased Capital and Investment in Cannabis*

The removal of Internal Revenue Code Section 280E for marijuana businesses
will free up substantial capital and improve investor sentiment across the
cannabis sector. This anticipated influx of investment and a favorable
shift in risk analysis can indirectly benefit the hemp industry and empower
a unified push for federal legalization. It can also empower investment in
research.

*Spurring Broader Federal Cannabis Policy and Guidance*

Rescheduling will likely prompt additional federal policy development and
guidance for the cannabis industry as a whole. This presents a critical
opportunity for hemp and marijuana stakeholders to align and advocate for a
clear, effective federal legal framework for all THC-containing
products—foods, beverages, supplements, cosmetics and inhalables—while
establishing a separate pathway for medical cannabis products intended for
treating conditions.

*Momentum for Comprehensive Cannabis Reform: Call for Congressional Action*

Rescheduling is a massive incremental step toward the ultimate solution of
descheduling marijuana and implementing appropriate regulations. This
broader push for comprehensive cannabis reform can energize advocacy
efforts to address the fundamental issues plaguing the hemp industry, such
as federal finished product regulation and inconsistent regulatory
oversight.

It strengthens the argument for sensible, science-based cannabis regulation
across the board, drawing lessons from state-level experiments with
marijuana and hemp oversight.

Rescheduling reinforces the imminent needed for congressional action to
regulate both medical and adult use THC containing products appropriately
for consumer safety. We are already seeing new energy supporting
congressional frameworks like the Strengthening the Tenth Amendment Through
Entrusting States (STATES) 2.0 Act and the Cannabinoid Safety and
Regulation Act.

*Comprehensive Cannabis Reform: The Case for Descheduling and Unified
Regulation*

While marijuana is taking a significant administrative step towards
descheduling, hemp is already there. Both industries share the common
challenge of navigating a fragmented federal-state regulatory landscape and
FDA illegality that urgently requires dedicated congressional action to
establish stable, responsible regulations.

Only Congress can address the full limitations of rescheduling and provide
a comprehensive federal cannabis regulatory model.

The significant shift in federal perception and the anticipated injection
of capital into the broader cannabis industry create a critical opportunity
for the hemp and cannabis stakeholders to organize, engage and advocate for
the necessary legislative change.

*Shawn Hauser is a partner at Vicente LLP, where she co-leads the firm’s
Hemp and Cannabinoids practice and advises companies, investors, and
governments on the evolving cannabis regulatory landscape.*

The post What Will Marijuana Rescheduling Mean For Hemp, Which Is Already
Fully Descheduled? (Op-Ed) appeared first on Marijuana Moment.