July 1, 2003

Court Invalidates DEA Interpretive Rule on Hemp Foods!

From: cha-owner@thehia.org [mailto:cha-owner@thehia.org] On Behalf Of David Bronner

Hello All:

We got a huge victory yesterday. The Ninth Circuit not only invalidated DEA's interpretive rule, but in finding that in fact it was an improperly issued legislative rule (issued without notice and comment and other requirements of the APA), the Court also affirmed the centrality of our case regarding the final rule as well. The opinion can be read at:

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/912EDA903192052988256D53 0005B86C/$file/0171662.pdf?openelement

Kazinsky issued a short dissent, although he did not contest the majority that the DEA rule was in fact an improperly issued legislative rule, but rather that it was an irrelevant and moot issue, and a "gratuitous" decision. He's wrong and in some kind of snit on this. He mischaracterized what we contended in saying we conceded the legislative rule rendered the interpretive rule moot. We in fact did so ONLY insofar as DEA formally disclaimed any further reliance on the interpretive rule, which DEA refused to do, thus forcing the Court to render a decision (in a week or so we'll post up our short brief on the Court's order to show cause re: mootness, and transcribe and post DEA's response as well). Kazinsky does look predisposed against us in the final rule, but hopefully we will turn him around.

The Court in their majority decision has blown apart DEA's case, as DEA's final rule is completely dependent on the interpretive rule. It's devastating, and Kazinsky is going have to come up with some tortured logic to back DEA in the endgame. The Court also handed us a nuclear bomb, as they found in addition to everything we found, presented and argued, that the DEA itself in 1975 had published in the Federal Register that non-viable seed is exempt from the CSA, and that THC is synthetic THC.

As well in the final rule, our core argument is much stronger, focusing simply and primarily on the statute itself demonstrating that the congressional exemption of hemp stalk, fiber, seed and oil from the CSA was made with full knowledge of insignificant trace resin content that in turn contains traces of the active drug principle (identified as THC in 1960's), as Congress recontrolled such trace resin right in the statute ("except the trace resin therefrom").

We are looking in great regarding the outcome of the final rule in the Ninth Circuit, and we will likewise be in great shape if this goes to the Supreme Court, if the government bothers to try and appeal and the Supremes bother to hear it. But this will be only after a decision on the final rule in the Ninth Circuit, likely the end of the year or early next year. However, we should be careful not to count our chickens too much, as DEA may still pull something out of the hat in their resposne brief due at the end July. We shall see, and we will deal.

The Vote Hemp release below has more details on the Court's ruling.

Congratulations everyone!

Take care, David

BREAKING NEWS!
Court Invalidates DEA Interpretive Rule on Hemp Foods DEA Rule "Legislative" and "Inconsistent with THC Regulation"

SAN FRANCISCO, CA - U.S. COURT of APPEALS for the NINTH CIRCUIT - The Hemp Industries Association (HIA), member food and body care companies, and their customers applauded a decision issued today by the US Court of Appeals in San Francisco, invalidating the Drug Enforcement Administration's October 2001 "Interpretive Rule" that would have construed the Controlled Substances Act to ban edible hemp seed, oil and oil and seed products.

Writing for the majority opinion, 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." The opinion is available at www.Votehemp.com.

"This is great news, but because the court narrowly declared the DEA 'Interpretive Rule' invalid on procedural grounds, hemp food remains in legal limbo until the court decides on the industry's challenge to the DEA's 'Final Rule' which is virtually identical to the 'Interpretive Rule,'" said Eric Steenstra, President of Vote Hemp, a non-profit organization dedicated to the acceptance of and free market for Industrial Hemp. "However, today's court ruling not only ensures hemp foods will continue to be legally available to consumers in the meantime, but also strikes a major blow to the ultimate validity of DEA's Final Rule," added Steenstra.

On March 28, 2003 the HIA, several hemp food and cosmetic manufacturers and the Organic Consumers Association filed a brief in the Ninth Circuit asking for a review of the Drug Enforcement Administration's (DEA) "Final Rule" regarding hemp foods. If this new "Final Rule" were to take effect, it would ban hemp seed and oil and consequently destroy the multimillion-dollar hemp food industry. Due to a Court ordered Stay, hemp foods remain perfectly legal to import, sell and consume while the Court hears arguments from the HIA and DEA and renders a decision.

The HIA brief charges that the DEA's "Final Rule" should be invalidated because the agency is exercising arbitrary and capricious authority by attempting to outlaw hemp seed and oil without holding formal hearings on the issue or finding any potential for abuse. Because trace infinitesimal THC in hemp seed is non-psychoactive and insignificant, Congress exempted non-viable hemp seed and oil from control under the Controlled Substances Act (CSA), just as Congress exempted poppy seeds from the CSA, although they contain trace opiates otherwise subject to control. The brief also charges that the DEA acted in an arbitrary and capricious manner in exempting hemp seed mixed with animal feed, although Congress made no such distinction in the CSA.

Additionally, the brief elucidates other major failures by the DEA-namely, the lack of hearings on this issue and the failure to comply with the Regulatory Flexibility Act, which requires assessing effects of the proposed change on small businesses. The brief and other court documents are available at

http://www.votehemp.com/PDF/HIAvDEA_finalrules_petition.pdf

Final Legal Schedule in Hemp Food Fight
July 24, 2003: Deadline for DEA's response to HIA brief.
August 8, 2003: Deadline for HIA's reply to DEA's response.
September 17, 2003: Oral Arguments begin in San Francisco, CA.

North American hemp food companies voluntarily observe reasonable THC limits similar to those adopted by European nations as well as Canada and Australia. These limits protect consumers with a wide margin of safety from any psychoactive effects or workplace drug-testing interference (see hemp industry standards regarding trace THC at http://www.testpledge.com). The DEA has hypocritically not targeted food manufacturers for using poppy seeds (in bagels and muffins, for example) even though they contain far higher levels of trace opiates. The recently-revived global hemp market is a thriving commercial success. Unfortunately, because the DEA's Drug War paranoia has confused non-psychoactive industrial hemp varieties of cannabis with psychoactive "marihuana" varieties, the U.S. is the only major industrialized nation to prohibit the growing of industrial hemp.

Vote Hemp is a 501(c)4 non-profit group dedicated to the acceptance of and free market for Industrial Hemp. To make a donation to help us continue our work, please visit:

http://www.votehemp.com/contribute.html