DEA Just Listed HHC in Schedule I. I Still Think the Statute Matters.

The DEA has now done what many in the hemp industry feared it would: it specifically listed hexahydrocannabinol, or HHC, in Schedule I and assigned it its own DEA drug code, effective May 4, 2026. The position is not subtle. The agency says HHC is already a Schedule I substance because it falls within “tetrahydrocannabinols,” and this new rule is merely an administrative cleanup that gives HHC its own line item. The DEA also says HHC is a synthetic substance and that tetrahydrocannabinols made through chemical conversion, even when hemp derived, do not qualify as “tetrahydrocannabinols in hemp.”

That is a very aggressive move. It is also a very familiar one.

For years, I have argued that the 2018 Farm Bill should be read the way it was written (what lawyers call the “plain language” of the law), not the way regulators wish it had been written. Congress defined hemp broadly to include the plant and “any part of that plant,” including “all derivatives, extracts, cannabinoids, [and] isomers,” so long as the delta-9 THC concentration does not exceed 0.3 percent on a dry-weight basis. Congress also expressly carved “tetrahydrocannabinols in hemp” out of Schedule I. That is the statute. That is the text. And, in my view, that text still matters.

So let me say the quiet part out loud: I do not think the DEA’s legal position on HHC is as strong as the agency wants the market to believe.

Why? Because the DEA is not really relying on the Farm Bill’s actual language. It is relying on an extra rule of its own making. The agency says that chemically converted tetrahydrocannabinols are “synthetic” for CSA purposes, even if they are hemp derived, and therefore fall outside the hemp carveout. But the Farm Bill itself does not say that. It does not say “derivatives, extracts, cannabinoids, and isomers, except those made through chemical conversion.” It does not say “except compounds present only in trace amounts.” It does not say “except compounds DEA later dislikes.” The DEA is trying to write that limitation into the law. Congress did not.

To be clear, that is not just my position. There is real case law backing it up.

In the AK Futures case, the Ninth Circuit held that the “plain and unambiguous text” of the Farm Act compelled the conclusion that the delta-8 THC products before it were lawful. The court said those products fit comfortably within the statutory definition of hemp because they were hemp derived and contained no more than 0.3 percent delta-9 THC. That was not a vibe-based ruling. It was a straight text case. Start with the statute. Read the statute. Apply the statute.

Then came the Anderson case in the Fourth Circuit, which matters a great deal for those of us in the Southeast. The Fourth Circuit said that “[t]he critical distinction that separates illegal marijuana and THC from legal hemp under both state and federal law is a product’s delta-9 THC concentration.” It also said the Ninth Circuit’s interpretation of the Farm Bill was the better one, and, in a line that should get the industry’s attention, it said the DEA’s interpretation “lacks the power to persuade.” That is not a small thing. That is a federal court of appeals telling the DEA, in substance, that the agency does not get to rewrite an unambiguous statute just because it prefers a narrower outcome.

This is where I want to be careful, though, because nuance matters.

Anderson does not magically make every converted cannabinoid lawful. The lawsuit was not a direct APA challenge to the DEA’s new HHC rule. It did not squarely decide HHC’s status. And the plaintiff in Anderson still lost, in part because there was no evidence of the delta-9 THC concentration of the products she used. The court made that explicit. Even more importantly, Judge Richardson wrote separately to say that the synthetic-derivative question is thornier than the majority suggested and that he would save it for another day. In other words, Anderson gives the hemp side a lot of ammunition, but it does not end the fight.

That is why I think two things can be true at the same time.

First, I think the DEA is over-reading its authority and under-reading the statute. Second, I think HHC now sits in a very real legal gray area with very real business risk.

Those are not contradictory statements. They are the reality.

If the question is, “Do I think the DEA has the better reading of the Farm Bill?”, then my answer is, “No”. If the question is, “Do I think selling HHC is now legally and commercially risky?”, then my answer is, “Absolutely yes”.

That gets me to the part some of my readers may not love, but the part I think needs to be said.

I have spent years making legal arguments that expanded access to cannabis by following the letter of the law. I stand by that work. I still believe the 2018 Farm Bill’s text is broader than many regulators wanted it to be. I still believe that a lot of the industry’s success came from reading the statute carefully and refusing to collapse into mushy appeals to “legislative intent.” I still believe that broad cannabis reform is the right direction. Applying the plain letter of the law has gone a long way towards cannabis reform and broad access. 

I also think the hemp industry has, at times, sprinted past prudence.

The rise of converted and increasingly exotic intoxicants has created two problems at once. The first is a public safety problem. The second is a political problem. Those two problems feed each other.

On the public safety side, I worry about manufacturing quality, product consistency, and the speed at which new molecules hit the market, long before anyone has done the kind of serious toxicology, impurity screening, or long-term safety work that should give us confidence. On the political side, I think the flood of novel intoxicants has helped fuel the backlash that is now threatening the broader hemp market. Courts may still read the statute correctly, but lawmakers, regulators, and enforcement agencies have plainly become less tolerant of an industry that sometimes looks like it is trying to outrun common sense. Even Anderson acknowledged that these products are notoriously difficult to regulate and often contain higher THC concentrations than labels claim.

None of this means that the answer is prohibition. It means the answer is regulation that is serious, coherent, and honest.

I have said for a long time that the United States needs to move past the fake moral and legal divide between “hemp” and “marijuana” and toward a One Plant approach. (Kudos to Amber Lengacher with the firm and also to Steve and Andrew DeAngelo for their excellent work on this issue.) We are dealing with one plant, one consumer market, and one basic public policy challenge: how to allow adult access while protecting minors and ensuring product integrity. My answer to that has been the Three Pillars. Keep cannabis away from minors. Require standardized testing and quality control. Require clear labeling and packaging. That framework is still the right one.

This all points, in my view, the industry in a better direction.

If you are in the hemp business, I think the long game is not more exotic molecules. I routinely get asked what the “next thing” is in hemp. It is better products, better science, better manufacturing, and a stronger push toward natural compounds and flower. That does not mean every converted cannabinoid is unlawful. It does mean the industry should ask whether every new intoxicant is worth the legal, political, and reputational cost. In many cases, I think the answer is no.

So where does that leave HHC?

Legally, I think there is still a serious argument that the DEA is wrong. The Farm Bill’s text is broad. AK Futures is still out there. Anderson is still out there. And neither case is easy to square with the DEA’s effort to say that chemically converted hemp cannabinoids are categorically outside the hemp carveout.

Practically, however, the DEA has now given itself and every nervous bank, payment processor, insurer, marketplace, and wholesaler a fresh talking point: HHC has its own Schedule I listing. The DEA says the rule is merely “technical,” skipped notice and comment on that basis, and insists it changed nothing substantive. But whatever the agency calls it, the market will feel it.

My bottom line is simple.

I am not ready to surrender the statute, nor the ongoing fight to keep hemp lawful. I do not think the DEA gets to win this debate simply by saying the word “synthetic” louder. But I am also not going to pretend that HHC is now a comfortable product category. It is not. It is a litigation product. It is a risk product. And it sits inside a broader industry trend that I believe has done real damage to the hemp movement’s long-term credibility.

If you sell HHC, be honest about the risk. If you regulate hemp, be honest about the text. And if you care about the future of cannabis reform, do not mistake every legal opening for a wise business model.

Sometimes the law allows more than prudence should encourage.

May 10, 2026