HIA vs. DEA: Hemp on Trial

Now there's a standoff brewing in court: HIA vs. DEA. Leaders of the Hemp Industries Association (HIA) – America’s largest hemp industry group supported by brands like Dr. Bronner’s Magic Soaps and Nutiva, an organic foods company – has filed a lawsuit against the federal government to formally distinguish industrial hemp from its more dubious cousin, ‘marijuana,’ as well as prohibiting the agency from regulating hemp products such as food, fiber, stalks and sterilized seed and oil.

To understand why this legal challenge came to be, you first must go back to December 2016. It’s then that a North Dakota company called Healthy Oilseeds, LLC, attempted to ship hemp protein powder and hempseed oil food items that were grown under the state’s hemp pilot program protected by the Agricultural Act of 2014.

The North Dakota Department of Agriculture (NDDA) and the DEA claim these goods require a DEA permit. “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,” said Colleen Keahey, Executive Director of the HIA.

She goes on to say, “Specifically, Healthy Oilseeds received communication from the NDDA stating that export of its hemp products to other states was prohibited, ‘because industrial hemp is a Schedule I controlled substance under the Federal Controlled Substances Act.’” Besides the seed oil market, there is a growing tide of support for access to the medicinal hemp extract known as cannabidiol (CBD), which is used to treat a wide variety of issues including seizures, inflammation, tumor inhibition, and even skin disorders such as eczema.

The legal motion comes a couple months after the DEA added a new code to its Federal Register reclassifying CBD oil and other marijuana extracts, like hemp oil, as Schedule I drugs. Visit The Cannabist for more on this issue. DEA officials claimed the code would allow the agency to better track all cannabis extracts being imported and exported to and from the U.S.

“The creation of a new drug code in the DEA regulations for marihuana [sic] extracts will allow for more appropriate accounting of such materials consistent with treaty provisions,” says the announcement.

Founded in 1992, the HIA represents the majority of hemp businesses in the U.S. and has a direct association with a more well-known political lobbying arm called Vote Hemp. These entities have been integral in the process of organizing like-minded advocates and industry leaders to reintegrate hemp into America’s agricultural system as a highly sustainable crop with hundreds, if not thousands, of potential products that can be made from it.

Needless to say, this head-to-head battle between acronyms has been going on for some time. But this is debate that’s much older, going all the way back to President Nixon’s Controlled Substances Act (1971) that lumped industrial hemp together with marijuana. Because hemp is not psychoactive, it cannot get you high and poses no risk to one’s health. In fact, it’s been found to be one of the most nutritionally-complete superfoods.

“Hemp is a healthy superfood with vital nutrients such as Omegas 3 and 6, protein, fiber and all 10 essential amino acids that are ideal for today’s family. The DEA must stop treating hemp, hempseed and hempseed oil, which is a nutritious ingredient, as something illicit,” Keahey says. “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.”

Hemp is being grown commercially in only a few states, while more than 25 states have been permitted to begin researching the crop through their public universities under Congress’ Agricultural Act of 2014 (FARM Bill). Thus far, Colorado and Kentucky have become the national trailblazers in the commercialization of hemp.

Their local efforts to pursue privatization flies in the face of federal law, but there has been relatively little resistance from the DEA. The one area of issue is the importation and certification of fertile hemp seeds from other nations growing legally, including Canada, China and several European countries.

“Here in Kentucky, our Commissioner of Agriculture, Ryan Quarles, has built a successful pilot program that works closely with local law enforcement and is creating desperately needed economic opportunity for hundreds of farmers,” says Bill Hilliard, CEO of Atalo Holdings, Inc. “As states have wisely taken the initiative in this growing industry, the DEA doesn’t need to be interfering on our farms.”

This legal motion is not the first the HIA has brought against the DEA. Rewind to 2004, and you’ll find a decision from the Ninth Circuit Court of Appeals which ruled in favor of the HIA in a unanimous decision. Judge Betty Fletcher noted in the judicial opinion, "[T]hey (DEA) cannot regulate naturally-occurring THC not contained within or derived from marijuana – i.e. non-psychoactive hemp – is not included in Schedule I. The DEA has no authority to regulate drugs that are not scheduled, and it has not followed procedures required to schedule a substance. The DEA's definition of ‘THC’ contravenes the unambiguously expressed intent of Congress in the Controlled Substances Act (CSA) and cannot be upheld."

Considering the U.S. is the leading importer and consumer of hemp and hemp-based products, one should wonder deeply as to why hemp is of any concern at all to the DEA, especially when substances like heroin and methamphetamine continue to plague communities throughout America.

To answer that question, I encourage your own informed speculation. It continues to be an uphill contest for hemp in the U.S. The “war on drugs” cop culture may seem passé in the modern world, but that does not mean DEA officials will give without a fight. Just like any government agency, they are forever battling for their own legitimacy and expansion, even where they aren’t welcome.

Joe Sandler, HIA’s lead counsel, stated: “Thirteen years ago DEA was told in no uncertain terms by the U.S. Court of Appeals that Congress had made its intent clear: The 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.”

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+ Read the legal motion

+ National Hemp Lobby Day on March 1 – Visit Vote Hemp to learn more!