The hemp industry Monday won another in a string of victories in its two-year-old legal battle with the Drug Enforcement Administration (DEA) over the agency's effort to block the sale and possession of foods containing hemp products. The 9th Circuit Court of Appeals overturned the DEA's interpretive rule barring hemp foods, ruling that the agency violated its own rulemaking procedures by failing to give advance warning or allow for public comment before it promulgated the rule in October 2001.
Writing for the majority, Judge Betty Fletcher said, "Because the DEA rule is inconsistent with the THC regulation at the time of promulgation, it is a procedurally invalid legislative rule, not an interpretive rule. The petition requesting that we declare the rule to be invalid and unenforceable is granted."
But while the ruling kills the DEA's interpretive rule barring an appeal to the Supreme Court, the agency's later Final Rule banning hemp foods still stands and the multi-million dollar hemp foods industry remains in danger. That rule is also being challenged by the industry via the Hemp Industries Association (HIA), which represents hemp manufacturers and retailers. Neither rule has actually been implemented because the HIA has successfully sought restraining orders to block them, and despite the DEA's best efforts, hemp foods remain legal and available to the public. [Ed: And tasty, too.]
In its 2-1 opinion, the 9th Circuit also made findings that are causing some hemp supporters to see signs of a favorable ruling on the DEA's Final Rule. The court found that that DEA itself in 1975 had published in the Federal Register a statement that non-viable hemp seed was exempt from the Controlled Substances Act (CSA) and that the listing for THC in the drug schedules only referred to synthetic THC. The DEA has argued that the CSA allows it to ban hemp-based foods with even trace elements of naturally occurring THC.
HIA lead attorney Joe Sandler was a bit more circumspect. "While this was about the interpretive rule, not the final rule, the majority opinion contains language indicating that two of the judges do understand that hempseed and oil are not covered by the CSA, trace elements of THC notwithstanding," he told DRCNet. "Those same judges will be hearing arguments on the final rule case," he said, "but I don't make predictions."
But one member of the three-judge panel that heard the case, Judge Alex Kozinski, issued a sharp dissent calling the ruling "moot" and "gratuitous" and predicted that the ban will stand. "The most likely outcome," he wrote, "is that we will uphold the regulation."
Kozinski was miffed because HIA insisted that the decision on the interpretive rule be made because the DEA would not agree to acknowledge the rule was moot, said Bronner. "The DEA is so slimy and untrustworthy that it is conceivable that it could still come back and harass the marketplace even if its Final Rule is thrown out, and when the DEA failed to concede the interpretive rule was moot, we felt we had to cover all the bases."
As for Kozinski's bet that the rule banning hemp foods would stand, Sandler blamed judicial ignorance. "In his dissent, Judge Kosinski said in passing that it seemed likely the court would uphold the Final Rule because of the presumption that the courts should give great deference to the agency doing the interpretation of the law," he explained. "But as we explained in our brief for the court on the Final Rule case, which Kosinski has probably not yet had a chance to read, there is nothing to interpret here. The plain language of the Controlled Substances Act excludes hempseed and oil and does not bring them under its purview as THC," he told DRCNet.
Oral arguments before the 9th Circuit are set for September 17, with a ruling expected sometime before year's end.
Visit http://www.votehemp.com/PDF/HIAvDEA_9th_opinion.pdf to read the court's opinion online.
Visit http://www.votehemp.com/PDF/HIAvDEA_finalrules_petition.pdf to read the HIA brief and other documents in the Final Rule case.
Visit http://www.thehia.org to learn more about the Hemp Industries Association and their upcoming conference in Lakota Sioux country, South Dakota, next month.