At the end of 2016, the DEA applied a Controlled Substances Code Number to cannabis extract products that contain one or more cannabinoids, such as THC, CBD, CBN and any other of the 100-plus cannabinoids found in the plant; although harvested with THC levels of less than 0.3 percent, industrial hemp still contains many other non-psychoactive cannabinoids. The code opened the door for potential federal enforcement against hemp businesses for producing and selling products with those cannabinoids, according to the HIA.
In response, the organization filed a brief in the 9th U.S. Circuit Court of Appeals in 2017, alleging that the DEA violates the 1937 Marihuana Tax Act, Controlled Substances Act and the Farm Bill, among other federal laws and regulations pertaining to hemp. Before the appellate court begins hearing arguments on February 15, nearly thirty members of the Congress have attached their names to an amicus brief supporting the HIA's case.
Amicus briefs are filed in appellate court cases by individuals and entities that aren't officially involved in the case but have a strong interest in its outcome and subject matter. These briefs advise the court of relevant information or arguments pertaining to the case.
“It is a joke to classify hemp as a Schedule I drug. People don’t smoke hemp. They use it as paper, lotion, clothing, biofuel, and so much more,” Polis said in a statement accompanying the brief. “The DEA needs to stop cracking down on the hemp ice cream we give our kids and get its priorities straight. Congress may not agree on much these days, but we did agree that states should be allowed to foster a hemp industry, free from federal interference, just like in the time of our founding fathers."
DeGette, Perlmutter and Polis have all introduced and supported federal and state legislation that protects cannabis and hemp industries in the past, including their efforts to craft the “Legitimacy of Industrial Hemp Research” section of the Farm Bill, which legalized growing hemp for research purposes under agricultural pilot programs and academic research; it also allows states with legalized hemp-growing programs to operate without federal interference.
However, members of Congress who support the brief agree that the DEA has continued to persecute legal hemp businesses since the Farm Bill's passing in 2014, pointing to a seizure of hemp seeds at the University of Kentucky — a move they believe directly violates the Farm Bill, explained in the amicus brief.
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. The Farm Bill granted States broad discretion to act as incubators for the development of domestic hemp research policy and markets. States and institutions of higher education—and where allowed by state law or regulation, their public or private sector partners—were given the freedom, flexibility, and latitude to try new methods and applications that are essential to the success of any pilot program, including those relating to industrial hemp.This isn't the first time the HIA has fought with the DEA in 9th Circuit Court of Appeals. In 2003, the HIA filed a lawsuit against the DEA for its proposed rule that would have criminalized hemp-seed products containing any trace of THC. In 2004, the 9th Circuit Court sided unanimously with the HIA, stating that the DEA didn't have authority under the Controlled Substances Act to ban an otherwise legal product because it might have traces of THC.
The Farm Bill allows institutions of higher education and State departments of agriculture and their partners and licensees (if allowed under state law and regulation) to research the growth, cultivation, and marketing of industrial hemp that comports with a THC-specific definition, and carry out pilot programs operating under state law without the need of additional DEA approval.
In a statement praising the amicus brief, Colorado HIA president Tim Gordon said that Polis has been one of the hemp industry's "strongest advocates" in Washington, D.C. "Colorado leads the nation in hemp cultivation and business and is bringing jobs back to Colorado, and it is important that it continue to be treated just like any other agricultural commodity," he said. "It only makes sense that because Colorado leads the nation in hemp, that Jared leads the charge for it on the Hill."
According to hemp advocacy group Vote Hemp, Colorado accounted for nearly a third of the legal hemp acreage in America in 2017. The state is also responsible for the first certified hemp seed in the United States, after the Association of Official Seed Certifying Agencies officially validated a hemp variety from Fort Collins-based New West Genetics in December 2017.
Read the full amicus brief below: