Congress Calls DEA “Unreasonable” About Hemp and CBD in New Legal Brief

Members of Congress speak out in favor of industrial hemp and CBD in legal brief.

Twenty-eight members of Congress, including both Republicans and Democrats, filed an amicus (also known as “Friend of the Court”) brief yesterday in the Hemp Industries v. DEA case currently pending in Ninth Circuit Court of Appeals. (I have previously written in depth about the case here.) In this post I intend to highlight a few thing about this important development.

First of all, the brief didn’t need to be filed. The parties to the action have all filed their briefs. Oral arguments before the Court are already scheduled to occur next month. An amicus brief is generally filed by a non-party group with an interest in the outcome of the case. The fact that a bipartisan group of members of Congress, many of whom helped draft the industrial hemp provisions of the 2014 Farm Act and the spending bills restricting interference with industrial hemp, is notable. The representatives who drafted the bill clearly wanted the Court to understand their intentions in enacting the law.

Second, the brief is scathing, direct, and comprehensive in its rebuke of the DEA. It catalogues the DEA’s acts and legal positions with respect to industrial hemp and CBD and clearly “sets the record straight”. Here are a few choice quotes:

Congress recognized the need for research and development to investigate market potential of domestic industrial hemp agriculture, including hemp agronomics, the economic impact of hemp-derived cannabinoids such as CBD, diversion controls, and the overall hemp products retail market.” P.17 [Note- My page numbers are to the Court’s pagination at the top of the document.]

[T]he “principle” at the core of the DEA statement was that DEA did not intend to follow the direction of Congress.” P.22

Cannabinoids are chemical compounds produced in the flower (trichomes) of all Cannabis plants, including industrial hemp. With the exception of THC, which is individually scheduled, no cannabinoids appear on any CSA Schedule of controlled substances and none, other than THC, are intoxicating or produce any psychotropic reactions, even when consumed in a very large quantity.” P.26

Third, the amicus brief should settle finally the questions about the scope of the Farm Act (it is broad), whether Congress intended to allow a commercial market in industrial hemp and its products (it did), and whether CBD is a scheduled substance under the Controlled Substances Act (it is not). These are things that I, and many others, have been saying for a long time. By issuing statements, promulgating rules, and taking acts which are contrary to law the DEA has created unwarranted confusion and stymied the very things that Congress intended when it enacted the industrial hemp provisions of the Farm Act. Congress has spoken. Hopefully, the Court will listen.

You can read the brief here.

Rod Kight is a lawyer based in Asheville, NC. He is licensed in North Carolina and Oregon and represents legal cannabis businesses. You can contact him by clicking here.

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