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Case Study: HIA v. DEA

Written By: Steven Woodling



 On October 9, 2001, the Drug Enforcement Agency (DEA) made a press release announcing a new interpretation of the Controlled Substances Act. This Interpretative Rule, which was posted in the Federal Register that same day, attempted to clarify the legal status of food products derived from hemp. The DEA used this rule to move food products created using hemp seed or oil to Schedule 1.
The DEA wanted to clarify where these hemp products fell in the CSA. The CSA states:
“The term ‘‘marihuana’’ means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such  plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.”
The first sentence of this definition states very clearly that any and all parts of the Cannabis plant is defined as marijuana and therefore subject to control under this act. And if the definition ended there, then the story would end there as well. The second sentence is what the DEA was attempting to clarify and interpret in the document they posted.
The second sentence was written by Congress to exempt hemp and hemp products that did not contain THC. Congress recognized that the cannabis plant had portions of it that were not psychoactive and could not be abused by the general public, and so shouldn’t be regulated. As modern technology allowed trace amounts of THC to be detected in hemp, the DEA decided it needed to clarify its stance on hemp. The language of the interpretive rule is
…the Drug Enforcement Administration (DEA) interprets the Controlled Substances Act (CSA) and DEA regulations to declare any product that contains any amount of tetrahydrocannabinols (THC) to be a schedule I controlled substance, even if such product is made from portions of the cannabis plant that are excluded from the CSA definition of ‘marihuana.’
The hemp industry naturally took issue with this rule and The Hemp Industries Association (HIA) filed an Urgent Motion for Stay in the 9th Circuit Court of Appeals. The court saw fit to grant the stay and it was filed on March 7th, 2002. The stay was meant for the court to review the case and the merits of HIA’s arguments.
The DEA’s position was that because THC was present in the entire cannabis plant it had the right to regulate it through the controlled substances act, despite the exemption in the definition of marijuana. This was countered by the HIA’s position that hemp products contained only trace amounts of THC that were not nearly high enough to be psychoactive. This was the reason for the exemption in the first place and that the DEA’s new interpretation should be struck down.
Despite the stay, the DEA followed the procedural steps and issued the Final Rule on March 21st, 2003. The Final Rule document followed a public comment period in which the DEA "received comments from thousands of individuals and groups. The comments were in the form of original letters, form letters, petitions, and a cookbook.” (I want to know who sent them a cookbook as a public comment. Points for originality.)
It seems that the DEA was insistent that hemp is regulated and the sale and distribution of hemp and hemp products be stopped. The DEA does mention that the only hemp products that would be illegal would be ones that were designed for human consumption and that products that were meant for external use or for animals would not be regulated, but it still seems strange to me that they would be this pushy about the regulation despite the court's stay a year earlier.
HIA was forced to file for another stay, and they did so in the same court on March 28th, 2003. This time the court took the case to a final decision. On February 6th, 2004 the 9th Circuit Court of Appeals issued a final decision in the case of HIA v. DEA. The decision was unanimous and written by Judge Betty Fletcher. The decision is very clear in its wording and leaves no room for doubt as to the intention of the court. Fletcher writes:
We have previously held that the definition of “THC” in Schedule I refers only to synthetic THC, and that any THC occurring naturally within Cannabis is banned only if it falls within the Schedule I definition of “marijuana.” We reiterate that ruling here: in accordance with Schedule I, the DEA’s relevant rules and regulations may be enforced only insofar as they ban the presence of marijuana or synthetic THC.
This is a victory for the HIA and the hemp industry. Hemp was exempted by Congress for a reason and the DEA’s attempt to reinterpret that exemption was a clear overreach of their power. However, the court held that overreach was because the DEA failed to follow proper rule making procedure. Does this mean that the DEA will be able to place hemp and hemp products on schedule I later?
No, it does not. The hemp industry was satisfied with this ruling because the court’s decision because of the procedural rule that the DEA failed to follow was §811(a)(1)(B), which states:
(b) Placement on schedules; findings required. Except where control is required by United States obligations under an international treaty, convention, or protocol, in effect on October 27, 1970, and except in the case of an immediate precursor, a drug or other substance may not be placed in any schedule unless the findings required for such schedule are made with respect to such drug or other substance. The findings required for each of the schedules are as follows:
(1) SCHEDULE I.
(A) The drug or other substance has a high potential for abuse.
(B) The drug or other substance has no currently accepted medical use in treatment in the United States.
(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.
The court’s decision was that the DEA failed to show that hemp met any of these requirements. In fact, the DEA didn’t even try to argue that hemp met these requirements. The DEA tried to argue that the THC in hemp was all that it needed to reschedule it. Unfortunately, for the DEA, the CSA and the courts had already held that the THC definition in the CSA was for synthetic only and that the naturally occurring THC in hemp was exempted in the plain language of the act.

This decision makes sure that the non-psychoactive parts of the cannabis plant would remain legal as defined by the CSA until the DEA could show that it met the requirements of the CSA to be rescheduled.



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