Hemp Industries Association Files Petition Against DEA

Hemp Industries Association Files Petition Against DEA to Defend Lawful Hemp-Derived Products from Agency Overreach
19 Jan 2017 5:41 PM

Suit Seeks to Defend Hemp Farmers, U.S. Businesses and Consumers from Illegal Attempt to Schedule Non-Psychoactive Hemp Derivatives as ‘Marihuana Extract’
WASHINGTON, D.C. — The Hemp Industries Association (HIA), the leading non-profit trade association consisting of hundreds of hemp businesses, filed a Petition for Review on January 13, 2017, in the Ninth Circuit Court of Appeals in San Francisco, seeking to block the implementation of the Drug Enforcement Administration’s (DEA) recently announced Final Rule regarding “Marihuana Extract.” The proposed DEA Final Rule attempts to unlawfully designate hemp-derived non-psychoactive cannabinoids, including cannabidiol, as “marihuana extract,” and append the Controlled Substances Act to add all cannabinoids to its Schedule I. Furthermore, this action by the DEA contravenes clear Congressional intent and legal parameters for the production and consumption of hemp-derived products containing cannabinoids, enacted by Sec. 7606 of the Agricultural Act of 2014 (Farm Bill).

To read the full petition, please visit:

https://hoban.law/sites/default/files/2017-01/17.01.13%20Petition%20%5Bfinal%5D.pdf

The DEA does not have the authority to augment the Controlled Substances Act; that power resides with Congress. Congress has clearly mandated, through the 2014 Farm Bill and the 2016 Omnibus Spending Law that the Controlled Substances Act does not apply to hemp grown in state pilot programs, and that it is a violation of federal law for agencies such as DEA to interfere with these programs. The DEA’s proposed rule regarding cannabinoids thumbs its nose at Congress and threatens to undermine the market for legal hemp products containing cannabinoids, including those produced in the U.S. under state laws that regulate hemp cultivation and processing pursuant to, and in accordance with the federal Farm Bill. These products, such as hemp foods and supplements, fall outside the Controlled Substances Act (CSA) and are not subject to regulatory control by the DEA.

“Hemp-derived products containing cannabinoids are an increasingly in-demand category within the hemp market—and U.S. consumers constitute the largest market for hemp products worldwide,” said Colleen Keahey, Executive Director of the Hemp Industries Association. “We are committed to defending the rights of our members, of entrepreneurial hemp farmers, businesses and consumers, who all are acting entirely within the legal framework of the CSA and Farm Bill, including those adversely affected by trying to source American-grown hemp and hemp derivatives to supply this demand. The DEA’s attempt to regulate hemp derived products containing cannabinoids lawfully sourced under the CSA, and farmed and produced under the Farm Bill in states like Kentucky and Colorado, is not only outside the scope of their power, it’s an attempt to rob us of hemp’s economic opportunity.”
The DEA has made previous attempts to interfere with legal hemp products, notably from 2001-2003 when the agency contended that hemp food products such as cereals, hemp seed and hemp oil, are a Schedule I substance due to trace insignificant residues of tetrahydrocannabinol, or THC. On February 6, 2004, the Ninth Circuit Court of Appeals ruled in response that hemp is not included in Schedule I; that the trace THC in such products is similar to trace opiates in poppy seed bagels, and does not render them controlled substances. The HIA believes this 2004 ruling sets strong legal precedent for the current petition, which asserts that cannabinoids derived from lawful portions and varieties of the Cannabis plant exempted from control under the CSA and through the Farm Bill, may not be regulated as “marihuana” or “marihuana extract” by the DEA.

More recently, in 2014, the DEA interfered with the implementation of state pilot programs for hemp farming, when the agency unlawfully seized 250 lbs. of certified industrial hemp seed imported from Italy. The viable hemp seed had been legally sourced to supply six hemp research projects licensed by the Kentucky Department of Agriculture and coordinated in conjunction with Kentucky State academic institutions. The seed was quickly released, following the filing of a lawsuit against the DEA on May 14, 2014 by then Kentucky Agriculture Commissioner, now U.S. Congressional Representative James Comer.
“Over a decade ago, the Ninth Circuit held that non-psychoactive hemp is not controlled by the CSA,” said Patrick Goggin, co-counsel for the HIA. “The DEA is again attempting to schedule under the CSA cannabinoids and non-psychoactive hemp beyond its authority. We believe the Ninth Circuit will invalidate this rule just like it did in 2004.”
To date, 31 states have passed hemp legislation that allows their farmers to cultivate hemp according to guidelines set forth in the Farm Bill. Per these guidelines, U.S. farmers planted nearly 10,000 acres of hemp in 2016. Farmers and agri-business across the country have invested many millions of dollars in infrastructure to comply with federal law; this retroactive misreading of statute puts the livelihood of these law-abiding companies and individuals at risk.
Recent DEA pronouncements indicate that DEA is threatening to flout prior court rulings, and assert regulatory authority over hemp seed, oil, and products made from hemp seed and oil, which have always been exempt from the Controlled Substances Act. HIA continues to monitor these developments, and will consider further actions to resist DEA’s unlawful attempts to regulate legal hemp products.
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The Hemp Industries Association (HIA) represents the interests of the hemp industry and encourages the research and development of new hemp products. More information about hemp’s many uses and hemp advocacy may be found at www.TheHIA.org.

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Mitch McConnell’s Love Affair with Hemp How the Kentucky senator picked a fight with the DEA and became one of Washington’s top drug policy reformers.

Last May, a shipment of 250 pounds of hemp seeds left Italy destined for Kentucky as part of a pilot project made legal by the 2013 federal farm bill. Kentucky farmers had long hoped for a crop that could fill the void left by the decline of tobacco, and many thought that industrial hemp, which is used in a vast array of products, could be that crop.

The hemp seeds cleared customs in Chicago, but when the cargo landed at the UPS wing of Louisville International Airport, the Drug Enforcement Administration seized it, arguing that importing hemp seeds required an import permit, which could take six months to process. If farmers couldn’t get those seeds into the ground by June 1, the entire first year of the hemp pilot program would be dashed.

The DEA would have succeeded in blocking the seeds from reaching Kentucky farmers and university researchers but for the efforts of the state’s agricultural commissioner, who sued the agency and, most improbably, Mitch McConnell.

McConnell—then the Senate’s minority leader—worked furiously to free the seeds from the DEA’s clutches and continued the pro-hemp drumbeat throughout 2014, as he campaigned for reelection. This year, as Senate majority leader, he’s taken a further step by co-sponsoring the Industrial Hemp Farming Act of 2015. While the farm bill carved out an exception to allow hemp cultivation in Kentucky, the 2015 bill would remove hemp entirely from the list of drugs strictly regulated by the Controlled Substances Act. It would, in essence, legalize hemp production in the United States.

“We are laying the groundwork for a new commodity market for Kentucky farmers,” McConnell told me. “And by exploring innovative ways to use industrial hemp to benefit a variety of Kentucky industries, the pilot programs could help boost our state’s economy and lead to future jobs. … I look forward to seeing industrial hemp prosper in the Commonwealth.”

Yes, Mitch McConnell said that. About hemp.

To grasp how McConnell—the quintessential establishment Republican—came to champion industrial hemp, you must first understand the economics and internal politics of Kentucky, as well as McConnell’s relationship to Kentucky’s junior senator, Rand Paul. It’s also helpful to know that close to $500 million worth of hemp products produced by Canada and other countries is already sold in the United States through such stores as Whole Foods. McConnell’s move also has potential ramifications beyond the marketplace, providing a credible threat to the Controlled Substances Act since it was signed into law by President Richard Nixon in 1970.

“The fact that Majority Leader McConnell is a co-sponsor of a hemp bill shows how fast the politics are changing on this issue,” said Bill Piper of the Drug Policy Alliance, a nonprofit group that favors reform. (Bill Piper should not be confused with Billy Piper, former McConnell chief of staff and current K Street lobbyist).

***

The story of how Mitch McConnell evolved on the hemp issue began in 2010. Rand Paul, a Tea Party favorite, was running to replace the retiring Jim Bunning in the U.S. Senate and spent much of the primary season blasting McConnell, who not only represented the establishment but also supported a different Republican candidate. The McConnell-Paul relationship changed dramatically after Paul prevailed in the primary and McConnell vigorously stepped in to support him in the general election against the Democratic nominee, Kentucky Attorney General Jack Conway.

The bond only grew when Paul came to the Senate in 2011. Paul encouraged McConnell to consider the hemp issue because it was favored by conservatives and Tea Party types, according to two sources familiar with those discussions. McConnell listened.

The other Kentucky Republican who played a role in McConnell’s evolution was Jamie Comer, the state’s newly minted agriculture commissioner. In August 2012, Comer held a news conference before the 49th annual Kentucky Farm Bureau Country Ham Breakfast—a big shindig on the Kentucky politics circuit—to announce that legalization of hemp in the state would be his No. 1  priority in the next legislative session. Paul and U.S. Rep. Thomas Massie, another Kentucky Republican, were there to support Comer; each later testified in support of Comer’s measure before the state Senate agriculture committee in February 2013, along with Rep. John Yarmuth, a Democrat from Louisville.

“I engaged with Jamie Comer,” Yarmuth told me. “He reached out to me. From the beginning it’s been a bipartisan thing.”

In Washington, D.C., McConnell was approached multiple times from hemp supporters back home. After the fourth such approach, the senior senator from Kentucky turned to his chief of staff, Josh Holmes, and said, “We’ve got to look into this.”

***

If, like the average U.S. senator, you are unfamiliar with the botany of the cannabis plant, here’s a quick primer:

For starters, hemp is sometimes referred to as marijuana’s “cousin,” which is an unhelpful metaphor because hemp and marijuana are actually the same species, Cannabis sativa. They are simply different strains, and they are cultivated and harvested in different ways.

The cannabis plant is dioecious, which means its male and female flowers grow on different plants. This is unusual: Dioecious species—including gingkoes, willows and a few others—make up only 6 percent of all flowering plants.

Hemp is produced after the male plant fertilizes the females—something that happens almost immediately once the plants flower. Marijuana, on the other hand, is produced from the unfertilized flower of the female plant. A person interested in growing marijuana wants only female plants; a plant that shows signs of male flowers is plucked immediately, before it can mature and pollinate the females around it.

Pollen contamination is one of the chief concerns of marijuana growers, legal and illegal, because as soon as a female flower becomes pollinated, she stops making her THC-rich resin and begins focusing entirely on seed production. (Hemp is defined by Kentucky law as containing less than 0.3 percent THC; unfertilized marijuana flowers could have THC levels of 20 percent or more.)

For decades, the law enforcement lobby has peddled anti-hemp talking points that just didn’t add up. During the 2013 farm bill debate, the DEA asserted that, “It can be extremely difficult to distinguish cannabis grown for industrial purposes from cannabis grown for smoking. This is especially true if law enforcement is attempting to make this determination without entering the premises on which the plants are being grown.”

James Higdon is a freelance writer based in Louisville and author of The Cornbread Mafia: A Homegrown Syndicate’s Code of Silence and the Biggest Marijuana Bust in American History. He can be reached at @jimhigdon. Full disclosure: His father, Jimmy Higdon, is a Republican state senator in the Kentucky state legislature.

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Read more: http://www.politico.com/magazine/story/2015/03/mitch-mcconnell-hemp-115671.html#ixzz3TKOJY7Z0