The DEA won’t give up the ghost on hemp, at least when it comes to ingestible products. In a statement to the Louisville Courier Journal on November 30, DEA spokesperson Melvin Patterson said, “All hemp products that can be consumed are illegal.” He went on to say, “We’re in the middle of an opioid crisis, so our focus isn’t on coming in and seizing chocolate hemp. But it’s illegal.” This position has no basis in law. According to Kentucky Commissioner Ryan Quarles, who wrote a letter to the DEA’s acting administrator about Patterson’s comments, the DEA is “Just plain wrong.” Quarles said that he was “dumbfounded” when he read Patterson’s statement. In the December 13 letter, written to express his views and to request a meeting in Washington DC, Quarles went on to state:
“I emphatically reject the notion that consumable hemp products, such as food components and floral extracts used in health and wellness products, are illegal. Such products are already being grown, processed and consumed by Kentuckians every day. In fact, consumable hemp products were legal to buy and use even before the Industrial Hemp Research Pilot Program began in 2014.”
Quarles is right. The DEA’s position is “just plain wrong” for several reasons. First of all, in 2004 the Ninth Circuit Court of Appeals struck down a DEA rule purporting to make imported hemp illegal. In its opinion the Court found that “non-psychoactive” hemp was legal to import. Importantly, it made no distinction between consumable and non-consumable hemp products. Hemp Indus. Ass’n v. DEA, 357 F.3d 1012 (9th Cir. Cal. 2004)
Second, the hemp provisions of the 2014 Farm Act, found at 7 USC § 5940, expressly remove “industrial hemp” from the the Controlled Substances Act (CSA). The DEA’s contention, expressed by Patterson in a response to Quarles’ letter, is that it is simply enforcing the CSA and that, “Unless Congress changes it, we’re going to continue to do our jobs.” No one disputes that the DEA’s job is to enforce the CSA. However, the DEA’s position that it can enforce the CSA against a plant that Congress explicitly removed from it is patently wrong.
Third, as in the 2004 Ninth Circuit ruling, the Farm Act makes no distinction whatsoever between consumable and non-consumable hemp products. That distinction is wholly made up by the DEA.
Finally, even if the 2014 Farm Act had not removed industrial hemp from the CSA, the DEA would be powerless to enforce it. Contrary to its assertion that it is not enforcing the CSA against hemp because it is instead focusing its efforts on the opioid crisis, several consecutive Congressional Appropriations Acts specifically prohibit the use of any Federal funds- by the DEA or any other agency- to interfere with state-legal industrial hemp, both in the state of cultivation and in other states. The DEA literally cannot do anything about industrial hemp.
Kudos to Commissioner Quarles for calling out the DEA on its false statements about hemp. The uncertainty these statements create wreaks havoc on a burgeoning, and lawful, industry.
This article was originally published in the Cannabis Law Report, December 17, 2017. Thanks to Sean Hocking, John Taylor, and the entire CLR group for their excellent journalism about the cannabis industry.