Hemp Industries Association Files Petition Against DEA
The Hemp Industries Association (HIA), the leading non-profit trade association听consisting of hundreds of hemp businesses, filed a Petition for Review on January 13, 2017, in the Ninth听Circuit Court of Appeals in San Francisco, seeking to block the implementation of the Drug Enforcement听Administration鈥檚 (DEA) recently announced Final Rule regarding 鈥淢arihuana Extract.鈥� The proposed DEA听Final Rule attempts to unlawfully designate hemp-derived non-psychoactive cannabinoids, including听cannabidiol, as 鈥渕arihuana extract,鈥� and append the Controlled Substances Act to add all cannabinoids to听its Schedule I. Furthermore, this action by the DEA contravenes clear Congressional intent and legal听parameters for the production and consumption of hemp-derived products containing cannabinoids,听enacted by Sec. 7606 of the Agricultural Act of 2014 (Farm Bill).
To read the full petition, please visit:
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The DEA does not have the authority to augment the Controlled Substances Act; that power resides with听Congress. Congress has clearly mandated, through the 2014 Farm Bill and the 2016 Omnibus Spending Law听that the Controlled Substances Act does not apply to hemp grown in state pilot programs, and that it is a听violation of federal law for agencies such as DEA to interfere with these programs. The DEA鈥檚 proposed rule听regarding cannabinoids thumbs its nose at Congress and threatens to undermine the market for legal hemp听products containing cannabinoids, including those produced in the U.S. under state laws that regulate hemp听cultivation and processing pursuant to, and in accordance with the federal Farm Bill. These products, such听as hemp foods and supplements, fall outside the Controlled Substances Act (CSA) and are not subject to听regulatory control by the DEA.
鈥淗emp-derived products containing cannabinoids are an increasingly in-demand category within the hemp听market鈥攁nd U.S. consumers constitute the largest market for hemp products worldwide,鈥� said Colleen听Keahey, Executive Director of the Hemp Industries Association. 鈥淲e are committed to defending the rights听of our members, of entrepreneurial hemp farmers, businesses and consumers, who all are acting entirely听within the legal framework of the CSA and Farm Bill, including those adversely affected by trying to source听American-grown hemp and hemp derivatives to supply this demand. The DEA鈥檚 attempt to regulate hemp derived听products containing cannabinoids lawfully sourced under the CSA, and farmed and produced under听the Farm Bill in states like Kentucky and Colorado, is not only outside the scope of their power, it鈥檚 an听attempt to rob us of hemp鈥檚 economic opportunity.鈥�
The DEA has made previous attempts to interfere with legal hemp products, notably from 2001-2003 when听the agency contended that hemp food products such as cereals, hemp seed and hemp oil, are a Schedule I听substance due to trace insignificant residues of tetrahydrocannabinol, or THC. On February 6, 2004, the听Ninth Circuit Court of Appeals ruled in response that hemp is not included in Schedule I; that the trace THC听in such products is similar to trace opiates in poppy seed bagels, and does not render them controlled听substances. The HIA believes this 2004 ruling sets strong legal precedent for the current petition, which听asserts that cannabinoids derived from lawful portions and varieties of the Cannabis plant exempted from听control under the CSA and through the Farm Bill, may not be regulated as 鈥渕arihuana鈥� or 鈥渕arihuana听extract鈥� by the DEA.
More recently, in 2014, the DEA interfered with the implementation of state pilot programs for hemp听farming, when the agency unlawfully seized 250 lbs. of certified industrial hemp seed imported from Italy.听The viable hemp seed had been legally sourced to supply six hemp research projects licensed by the听Kentucky Department of Agriculture and coordinated in conjunction with Kentucky State academic听institutions. The seed was quickly released, following the filing of a lawsuit against the DEA on May 14,听2014 by then Kentucky Agriculture Commissioner, now U.S. Congressional Representative James Comer.
鈥淥ver a decade ago, the Ninth Circuit held that non-psychoactive hemp is not controlled by the CSA,鈥� said听Patrick Goggin, co-counsel for the HIA. 鈥淭he DEA is again attempting to schedule under the CSA听cannabinoids and non-psychoactive hemp beyond its authority. We believe the Ninth Circuit will invalidate听this rule just like it did in 2004.鈥�
To date, 31 states have passed hemp legislation that allows their farmers to cultivate hemp according to听guidelines set forth in the Farm Bill. Per these guidelines, U.S. farmers planted nearly 10,000 acres of hemp听in 2016. Farmers and agri-business across the country have invested many millions of dollars in听infrastructure to comply with federal law; this retroactive misreading of statute puts the livelihood of these听law-abiding companies and individuals at risk.
Recent DEA pronouncements indicate that DEA is threatening to flout prior court rulings, and assert听regulatory authority over hemp seed, oil, and products made from hemp seed and oil, which have always听been exempt from the Controlled Substances Act. HIA continues to monitor these developments, and will听consider further actions to resist DEA鈥檚 unlawful attempts to regulate legal hemp products.
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