Hemp
Industry
Takes
DEA
to
Court
Over
Hemp
Food
Ban,
Urges
9th
Circuit
to
Throw
Out
DEA
Interpretative
Rule
1/11/02
The long-running conflict between the federal government's drug enforcement bureaucracy and a youthful hemp industry took a new turn this week when the Hemp Industries Association (HIA) and seven major hemp food companies filed suit in federal court to block the Drug Enforcement Administration (DEA) from banning the sale and consumption of hemp foods containing trace amounts of THC, the primary psychoactive ingredient in marijuana. The civil suit is only the latest tactic in the feisty industry's effort to survive and prosper in the face of drug war restrictions on hemp. Hemp activists had attempted in advance to gain a favorable rule interpretation from the DEA, to no avail. After the DEA's October 9 rulemaking, which bans such foods as of February 6, the industry responded on both the political and the legal fronts. The HIA filed for a temporary injunction to block implementation of the new rules (that request has yet to be ruled on), and Vote Hemp, an advocacy group working closely with the industry, with the help of Students for Sensible Drug Policy and the Mintwood Media Collective, organized publicity-generating hemp food taste test demonstrations in front of DEA offices or other federal buildings in at least 74 cities in December. Now, the industry has opened a new front. In its their filings this week in San Francisco, industry attorneys attacked the DEA's rulemaking process, the statutory basis for the DEA's authority to regulate hemp seeds and hemp oils derived from non-smokeable portions of marijuana plants, and the agency's wrongheaded assertions: "The 'Interpretive Rule' is, as a matter of law, actually a substantive, legislative rule," went the hemp industry brief. "Prior to the issuance of the 'Interpretive Rule," sterilized hemp seed and hemp seed oil, and oil and seed products, were not controlled substances under the terms of the CSA [Controlled Substances Act] notwithstanding the presence of miniscule amounts of THC. Hemp seed and oil are specifically excluded from the statutory definition of 'marijuana.' And both the statutory definition of 'THC' and the DEA's own regulations, by their plain terms and as interpreted by the courts, cover only synthetic THC, not naturally occurring THC present in the excluded parts of the marijuana plant." The lawsuit asks the 9th Circuit to invalidate the DEA's new rules and set them aside. "We're optimistic that the court will see that the DEA's actions are obviously unfounded and arbitrary," said David Bronner of Dr. Bronner's Magic Soaps. Although Bronner's business would be only marginally affected by the hemp food rules -- the company using hemp oil as an ingredient in its popular "magic soaps" -- he has nonetheless emerged as a key spokesman for the industry on this issue. "These rules have no basis in law or in common sense," Bronner told DRCNet. Bronner also expressed optimism regarding the still-pending request for a temporary injunction to block the DEA from implementing the new rules. "No, there hasn't been a ruling yet," he explained, "but the injunction request is being heard by the full three-member panel, and our lawyers interpret this as a sign they are carefully crafting a ruling against the DEA." Hemp activists expect a ruling before February 6, said Bronner. According to Bronner, the agency is also sending out mixed signals about how it will respond to hemp foods after February 6. One manufacturer reported being told that the agency would accept hemp foods tested in DEA-certified laboratories, said Bronner, "but other channels are reporting that the DEA is not at all interested in working with us. That's what I believe. If the DEA were to actually certify a lab or a protocol for testing, they would have de facto created a new, non-zero standard, and they have shown they are not interested in doing that," Bronner said. The hemp industry is not sitting back and waiting for the courts to act, said Bronner. The industry and major retailers have been working together in self-defense, he said. "Major retailers are now requiring that each and every lot be tested," Bronner said, "and this is a real expense for vendors. The Canadian government routinely does such tests -- they have it down to a science -- and does them for about $140. The DEA labs are much more expensive because they are not geared for these tests. The DEA test costs about $325." The hemp industry is paying a price to continue to exist, but hopes are that this is only a short-term measure until the courts overturn the DEA. (Visit http://www.votehemp.com/PDF/hemp_group_9th_cir_opening.pdf to read the HIA's exhaustive filing online.)
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