After losing a pivotal case all the way to the US Supreme Court earlier this Century and getting slapped down there and partially defunded by Congress for administrative over-reach, one might expect a governmental agency to follow its rules. Not so when that agency is the corrupt, “arbitrary and capricious” federal DEA, which seizes billions of dollars of Americans’ private property each year via property forfeiture.

The world’s leading hemp trade association, consisting of hundreds of businesses, filed a motion in February to hold the federal Drug Enforcement Administration (DEA) in contempt of court for violating an unchallenged, long-standing order issued by the U.S. Court of Appeals in San Francisco, prohibiting the agency from regulating hemp food products as Schedule I controlled substances.

Thirteen years after losing case, defiant DEA resists compliance

The Hemp Industries Association (HIA) argues that the DEA continues to operate with blatant disregard for the 2004 ruling by the Ninth Circuit Court of Appeals to permanently enjoined the DEA from regulating hemp fiber, stalk, sterilized seed and oil, which are specifically exempted from the definition of ‘marijuana’ in the federal Controlled Substances Act.

To read the motion, please visit: https://thehia.org/resources/Documents/Legal/HIA-v-DEA-9th-Circuit-Motion.pdf.

“We will not stand idly by while the DEA flouts the will of Congress, violates the Ninth Circuit order, and harasses honest hemp producers trying to make a living with this in-demand crop,” said Colleen Keahey, Executive Director of the HIA. “Hemp is a healthy superfood with vital nutrients such as Omegas 3 and 6, protein, fiber and all 10 essential amino acids that are ideal for today’s family.

“The DEA must stop treating hemp, hempseed and hempseed oil, which is a nutritious ingredient, as something illicit. We have to address the challenges that thwart the domestic industry’s progress and especially those that mislead state Departments of Agriculture and limit entry of legal hemp products into the marketplace.”

DEA sued after trying to annex hemp food products in 2001

Historically, the DEA has made persistent efforts to regulate hemp products. In 2001, DEA issued an Interpretive Rule attempting to ban all hemp seed and hempseed oil food products that contained even minuscule, insignificant amounts of residual THC.

The Hemp Industries Association (HIA) represents the interests of the hemp industry and encourages the research and development of new hemp products. More information about hemp’s many uses and hemp advocacy may be found at www.TheHIA.org.

The HIA immediately filed suit to stop the enforcement of this rule, which resulted in what became known as the “Hemp Food Rules Challenge.” Ultimately, the subsequent ruling made by the Ninth Circuit, issued serendipitously on February 6, 2004, found that the DEA had not followed necessary scheduling procedures to add non-psychoactive hemp to the list of Schedule I controlled substances; and additionally, that Congress clearly did not intend that hemp be prohibited by the Controlled Substance Act when it adopted language from the 1937 Marijuana Tax Act to define the drug ‘marijuana.’ Congress gave the President, Attorney General or head of the DEA the authority to shift or remove marijuana from the CSA list at any time.

Agency claims hemp products cannot be transported without DEA license

In December 2016, the DEA and the North Dakota Department of Agriculture (NDDA) indicated to Healthy Oilseeds, LLC that shipment of its hemp products made from the crop grown under the state’s hemp pilot program and Congress’ Agricultural Act of 2014 (Farm Bill), would require a permit from the DEA, as the hemp protein powder and hempseed oil food items were subject to DEA regulation.

Specifically, Healthy Oilseeds received communication from the NDDA stating that export of its hemp products to other states was prohibited, “because industrial hemp is a Schedule I controlled substance under the Federal Controlled Substances Act.”

Federal farm bill preempts DEA from its behavior

In addition to going far beyond the scope of its authority under the CSA, these DEA actions directly violate the clear Congressional intent of not only of the Farm Bill, which defines industrial hemp as distinct from ‘marijuana’ and legalizes its cultivation and processing under licensing programs in place in 31 states; but also further violate the Consolidated Appropriations Act of 2016, which specifically prohibited federal authorities from using funds to obstruct the “transportation, processing, sale, or use of industrial hemp…within or outside the State in which the industrial hemp is grown or cultivated.”

Farmers, industry lash back with court petition to enforce order

Hence, the DEA may not require lawfully licensed hemp farmers or manufacturers in the U.S. to register for a permit to engage in interstate commerce of industrial hemp products. Indeed, by taking this action, the DEA is violating federal law, misusing taxpayer dollars, and thumbing its nose at Congress.

“Here in Kentucky, our Commissioner of Agriculture, Ryan Quarles, has built a successful pilot program that works closely with local law enforcement and is creating desperately needed economic opportunity for hundreds of farmers,” stated Bill Hilliard, CEO of Atalo Holdings, Inc. “As states have wisely taken the initiative in this growing industry, the DEA doesn’t need to be interfering on our farms.”

Joe Sandler, HIA’s lead counsel, further stated: “Thirteen years ago DEA was told in no uncertain terms by the U.S. Court of Appeals that Congress had made its 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.”

The HIA and others filed a January 13, 2017 Petition for Review with the Ninth Circuit Court of Appeals, to challenge the DEA’s recent effort to append Schedule I of the Controlled Substances Act to include lawful hemp-derived non-psychoactive cannabinoids such as cannabinol, which the DEA has arbitrarily termed “Marijuana Extract.” In addition to this suit, the HIA intends to challenge the DEA’s repeated refusal to abide by other Congressional directives on industrial hemp.