One of two challenges to a rule about hemp extracts by the U.S. Drug Enforcement Administration has come to an unsuccessful end.

But U.S. District Judge James Boasberg said Monday that the Hemp Industries Administration and a South Carolina CBD company raised “interesting” questions about the DEA rule that appears to outlaw common methods to make hemp extracts CBD by saying that elevated THC levels during manufacturing aren’t allowed, even if the final product meets the federal definition of hemp.

The industry challenge is still pending in a federal appeals court, where Boasberg ruled the question must be decided.

“Interesting as this question may be, the court ultimately concludes that it is powerless to entertain the merits,” Boasberg concluded.

The same judge ruled against HIA and RE Botanicals last year on a request to force the DEA to clarify how it intends to enforce its policy over temporary hemp byproducts.

The hemp activists say the DEA is making an illegal power grab by banning something Congress meant to allow. The DEA has defended its position in legal filings, but no hemp extractors have been charged with federal drug crimes for elevated THC levels since the rule was announced last year.

An attorney for the hemp activists, Shawn Hauser, told Hemp Industry Daily that the decision was  especially disappointing considering that “multiple members of Congress, including those who drafted the hemp provisions of the 2018 Farm Bill, have made it clear” that the DEA overstepped with the extract rule.