On February 6, the Hemp Industries Association (HIA; Washington, DC) announced it had filed a petition for a motion of contempt against the U.S. Drug Enforcement Administration (DEA), alleging that the agency is unlawfully trying to regulate hemp food ingredients as Schedule I drugs. Specifically, HIA says the DEA continues to act in contempt of a court order the U.S. Court of Appeals issued to the agency back in 2004 forbidding the agency from regulating hemp food ingredients as Schedule I drugs.
That court order was issued on February 6, 2004, by the U.S. Court of Appeals in San Francisco after HIA and various hemp companies filed suit after the DEA issued a final rule in the Federal Register stating that any hemp seed or hempseed oil food product containing any amount, even trace amounts, of hemp constituent tetrahydrocannabinol (THC) is a Schedule I substance. In its ruling, the court wrote that while the DEA can regulate synthetic THC and any THC contained within marijuana as a Schedule I drug, the agency cannot regulate “naturally occurring” THC that isn’t contained within marijuana—including non-psychoactive hemp food ingredients such as hemp fiber, stalks, seeds, and oils.
“They cannot regulate naturally occurring THC not contained within or derived from marijuana—i.e., non-psychoactive hemp products—because non-psychoactive hemp is not included in Schedule I,” the court wrote. The Ninth Circuit’s ruling also stated that the DEA had not followed proper procedures in order to add non-psychoactive hemp ingredients to the Schedule I list.
According to reports from the HIA this February, however, the DEA continues to maintain the position that industrial hemp ingredients for food are Schedule I drugs. According to HIA, in December 2016, the North Dakota Department of Agriculture forbid hemp food ingredients grower Healthy Oilseeds LLC from exporting its products across state lines. According to the Department, the company did not have DEA “approval” to export its industrial hemp products, with the Department noting that “industrial hemp is a Schedule I controlled substance.”
As a result, in February, HIA, together with other members of the hemp industry, filed a Petition for Review with the Ninth Circuit Court of Appeals. Joe Sandler, HIA’s lead counsel, stated in a press release, “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 DEA must stop treating hemp, hempseed, and hempseed oil, which is a nutritious ingredient, as something illicit,” said Colleen Keahey, HIA’s executive director, also in the press release. “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.”
“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,” she said.