For over 25 years, the Hemp Industries Association has been fighting for justice for hemp. On three separate occasions in its history, the HIA has taken the Drug Enforcement Administration to federal court in landmark cases that helped to secure the future of the hemp industry in the United States.
In which the HIA successfully challenged the DEA’s ban on hemp foods.
“(DEA) cannot regulate naturally-occurring THC not contained within or derived from marijuana -i.e. non-psychoactive hemp is not included in Schedule I. The DEA has no authority to regulate drugs that are not scheduled, and it has not followed procedures required to schedule a substance.” — Ninth Circuit Court of Appeals Judge Betty Fletcher
In October of 2001, the DEA announced via press release an interpretive rule that banned hemp seed and hemp oil food products which contained any amount of trace THC. In response to this capricious and unreasonable action, taken without compelling reason and without allowing for the statutorily-mandated public comment period, the Hemp Industries Association (HIA) and several other plaintiffs filed an “Urgent Motion for Stay” to prevent the rule taking effect. In March of 2002 the United States Court of Appeals for the Ninth Circuit granted the motion, and the trade of hemp foods was able to continue while the case would be litigated. The proposed October 2001 rule issued by the DEA attempted to do a number of other things, including exempting hemp body care and fiber products from their supervision and adding language to the Controlled Substances Act that would criminalize the sale or possession of hemp foods containing any THC —without specifying a testing protocol or de minimus level of detection. The unreasonableness of these requirements, the unequal treatment of hemp when compared to similarly non-intoxicating food products like poppy seeds, and the intolerable burden they placed on the domestic hemp industries, made clear the pressing need for legal action as a remedy.
Funded largely by HIA member Dr. Bronner's, the suit was argued by lead counsel Joe Sandler of Sandler, Reiff and Young and co-counsel Patrick Goggin, an independent California attorney with cannabis experience. Despite overwhelming opposition and the ongoing litigation, in March of 2003 the DEA continued to publish new rules attempting to criminalize the possession and sale of hemp seed oil and hemp food products containing trace amounts of THC.
They also published a rule that would have effectively destroyed the U.S. hemp body care and hemp fiber industries (under the guise of exempting them from supervision) by banning the import of the hemp seed oil required to make their products. On March 28, 2003, the Hemp Industries Association, several hemp food and body care companies, and the Organic Consumers Association filed an urgent motion for stay in the 9th Circuit Court of Appeals to stop this.
In February, 2004 the Ninth Circuit issued a unanimous decision in favor of the HIA, in which Judge Betty Fletcher wrote, “[T]hey (DEA) cannot regulate naturally-occurring THC not contained within or derived from marijuana-i.e. non-psychoactive hemp is not included in Schedule I. The DEA has no authority to regulate drugs that are not scheduled, and it has not followed procedures required to schedule a substance. The DEA’s definition of “THC” contravenes the unambiguously expressed intent of Congress in the Controlled Substances Act (CSA) and cannot be upheld”.
When the DEA declined to appeal this ruling to the Supreme Court in September of 2004, the HIA and its allies were victorious, and the continued growth and success of the hemp industries in the United States was assured.
In which the HIA sued the DEA to stop an attempt to ban CBD.
“Congress legalized … any commercial marketing of industrial hemp extracts and derivatives, so long as the products fell under the THC threshold level.” — Supporting Amicus Brief signed by 28 U.S. Senators and Representatives
In December, 2016, the DEA published a rule establishing a drug code for “any extracts from the genus cannabis plant containing any cannabinoid” and attempting to schedule cannabidiol, or CBD, under Controlled Substances Act, despite never having initiated the formal scheduling action to determine if it satisfied the statutory requirements for control. Once again acting capriciously, the DEA’s decision posed a significant threat to hemp producers and consumers in the U.S. who had been legally producing and consuming CBD and hemp oil under the Agricultural Act of 2014. Local law enforcement in some states began to seize the property of and shut down successful CBD businesses, and the chilling effect on the hemp industries was immediate.
In 2018, the HIA and a coalition of allies filed suit, petitioning the United States Court of Appeals for the Ninth Circuit to halt the DEA’s action on the grounds that it violated several laws, including the Agricultural Act of 2014. The petitioners were joined by 28 U.S. Senators and Representatives, who stated in their Amicus Brief that the DEA was directly violating the 2014 Farm Bill, which had created an exemption from the Controlled Substances Act by defining industrial hemp grown in an authorized research program.
The designation of CBD as a Schedule 1 substance, furthermore, was a clear violation of its own requirements for scheduling, which state that the substance must have no accepted medical use. The DEA, for its part, maintained that the creation of this new drug code was intended to allow them to conduct more precise reporting and accounting and that, since it did not add a substance to the schedules that was not already controlled, the rule was not a scheduling action under 21 U.S.C. §§ 811 and 812.
In April of 2018, the 9th Circuit sidestepped the issue by ruling against the petitioners on procedural grounds. Because the HIA and other plaintiffs had not submitted a public comment during the designated period on this question, which was six years prior to the DEA’s new rule, they ruled that the plaintiffs did not have sufficient standing to bring the suit. However, in a nod to the inadequacy of this ruling, they issued the opinion as a memorandum, granting it no weight of precedence. Despite this apparent setback, the cumulative impact of the definitively argued legal case, the resultant congressional and public backlash, and the collective advocacy efforts of allies like Vote Hemp and others across the U.S. hemp industries, would lead to the unequivocal legalization of industrial hemp and all of its products and extracts with the 2018 Farm Bill.
In which the HIA filed a motion to hold the in contempt of court for violating the 2004 ruling.
“Thirteen years ago DEA was told in no uncertain terms by the U.S. Court of Appeals that Congress had made it’s intent clear: DEA has no power to regulate hemp seed and oil, and the hemp food and beverage products made from them. It is disappointing that the industry has to revisit the issue and take this step to compel DEA to obey the law.” — Co-Counsel for the HIA Joe Sandler
In February, 2017 the HIA took action to hold the DEA in contempt of court for violating the 13-year-old court order that prohibits the administration from regulating hemp food products as Schedule I controlled substances.
The DEA, in conjunction with the North Dakota Department of Agriculture (NDDA), had sent a threatening letter to a North Dakota company that produced hemp protein powder and hempseed oil from hemp grown legally in the state. The letter claimed that the export of hemp products to other states was prohibited, “because industrial hemp is a Schedule I controlled substance under the Federal Controlled Substances Act.” This was part of a long pattern of the DEA failing to adhere to the terms of the 2004 ruling.
The HIA sought to hold the administration in contempt for violating the 2004 Ninth Circuit’s ruling that the DEA has no power to regulate the mature stalks, fiber, oil, or cake from hemp and that products derived from those parts of the plant are exempt from the Controlled Substances Act. The HIA also argued that the DEA’s actions violated both the Congressional intent of the 2014 Farm Bill and the Consolidated Appropriations Act of 2016. The Farm Bill defined industrial hemp as distinct from marijuana and allowed states to legalize its cultivation and processing. The Consolidated Appropriations Act of 2016 prevented the use of federal funds to obstruct the processing and sale of hemp in and outside of states that had legalized hemp cultivation.
In 2018, as part of a negotiated settlement with the HIA, the Drug Enforcement Administration “clarified” its rule to affirm that the it had no authority over products derived from the hemp plant, regardless of its cannabinoid content. This negotiated settlement with the DEA set the stage for the FDA to recognize hemp food with GRAS status (Generally Recognized as Safe) including hulled hemp seed, hemp seed protein powder, and hemp seed oil. Finally freed of government interference, the hemp seed foods industry has begun to flourish in the United States.