HIA vs. DEA Legal Case

The HIA has been leading efforts to expand markets for industrial hemp and to defend existing markets from any regulations or new laws that would restrict legitimate commerce in hemp products since its founding in 1994. 

Background on the DEA attempt to ban hemp foods

The Drug Enforcement Administration (DEA) published a rule regarding industrial hemp products in the Federal Register on October 9, 2001, which was effective immediately, and announced it in a press release. Without any compelling reason or the required public notice and comment period, the DEA issued an Interpretive Rule banning hemp seed and oil food products that contain "any amount" of tetrahydrocannabinol (THC). In response, the Hemp Industries Association (HIA) and several other plaintiffs filed an "Urgent Motion for Stay" of the DEA interpretive rule, and on March 7, 2002, the 9th Circuit Court of Appeals issued a stay of the interpretive rule. The stay remained in effect and hemp foods continued to be sold at thousands of locations across the country while the case was litigated.

Also on October 9, the DEA issued an Interim Rule exempting hemp body care and fiber products from DEA control and a Proposed Rule which would add language to the Controlled Substances Act making hemp food products illegal to sell or possess if they contained "any" THC.

After extensive meetings and discussions with most of the major hemp food companies, it became clear that according to the official Health Canada testing protocol these hemp food companies' products generally did not have any detectable THC and should therefore remain perfectly legal for resale and consumption.

However, since the DEA had not specified a detection protocol and a corresponding de minimus limit of detection, companies had no way of knowing for sure if their products would be legal under the DEA's new rules.

Hemp seeds and oil have absolutely no psychoactive effect, and are about as likely to be abused as poppy seed bagels for their trace opiate content or fruit juices for their trace alcohol content (present through natural fermentation). The DEA's actions were especially puzzling, as they had not targeted poppy seed manufacturers for the trace opiates present in their products. In fact, the U.S. government raised drug-test thresholds for opiates in the 1990's to accommodate the poppy seed industry.

On March 21, 2003, the DEA published two new Final rules regarding industrial hemp products in the Federal Register, which were scheduled to go into effect on April 21, 2003. Despite overwhelming opposition, the DEA issued a Final Clarification Rule banning hemp seed and oil food products that contain any amount of trace residual THC. The DEA also issued a Final Interim Rule exempting hemp body care and fiber products from DEA control; however, this rule did not allow hemp seed and oil to be imported for processing and manufacturing in the U.S. thereby effectively destroying body care manufacturers' ability to obtain the hemp oil they need 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. The industry was optimistic that the Court would grant the Stay, given previous Court action on the issue. In the meantime, the law of the land affirming hemp food's legality remained in effect.

On February 6, 2004 the Ninth Circuit Court of Appeals 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". On September 28, 2004 the HIA claimed victory after DEA declined to appeal to the Supreme Court of the United States the ruling from the Ninth Circuit Court of Appeals protecting the sale of hemp-containing foods. Industrial hemp remains legal for import and sale in the U.S., but U.S. farmers still are not permitted to grow it.

The summary "Agency Issues Legislative Rule in Violation of Administrative Procedures Act" by Harrison M. Pittman of the National Agricultural Law Center is an excellent overview of the Ninth Circuit Court of Appeals decision in HIA v. DEA.


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