Sixteen years ago, the Drug Enforcement Administration (DEA) denied a petition that sought to unleash industrial hemp from the shackles of the Controlled Substances Act.
Had the 1998 petition been granted, cannabis plants containing little of the psychoactive ingredient THC—1 percent or less—would have been removed from the schedules of controlled substances, with the U.S. Department of Agriculture overseeing licensing of industrial hemp.
The scheduling criteria in the Controlled Substances Act (CSA) wasn’t intended “to be applied to hypothetical controlled substances," such as a granola bar that contained a low amount of the hallucinogenic LSD, noted DEA’s then Deputy Administrator Julio F. Mercado in denying the petition.
Furthermore, Congress didn’t “make any distinctions based on the percentage of controlled substance contained in (or potentially derived from) the plant," he said in a Dec. 19, 2000 letter.
“Congress provided that the penalties for unlawful cultivation of cannabis are based on the number of plants—without regard to the percentage of THC in the plants," Mercado wrote.
Times have changed.
In a new petition requesting the removal of industrial hemp from the CSA schedules, hemp advocates noted Congress differentiated industrial hemp from marijuana plants in the 2014 Farm Bill. Section 7606 of the legislation authorized the growth, cultivation and marketing of industrial hemp under agricultural pilot programs in states that have legalized such activities.
What’s more, language in an appropriations bill that was passed last year by Congress barred the use of funds to impede hemp activities carried out under the Farm Bill, the petitioners noted.
Industrial hemp is defined in the Farm Bill as “the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis."
“This is a juncture at which Congress has clearly differentiated industrial hemp from drug marijuana," said Joseph Sandler, an attorney in Washington who filed the petition earlier this month on behalf of the Hemp Industries Association (HIA). The petition was also filed by the Kentucky Hemp Industry Council, whose members include, among others, CBD wholesaler CV Sciences (formerly known as CannaVest), Dr. Bronner’s, the hemp soap company, and the hemp food maker Nutiva.
The petition also cited a 2004 appellate court opinion, which invalidated DEA regulations that would have prohibited the sale of food and cosmetic products made from hemp oil and seed containing any trace amounts of naturally occurring THC. The U.S. Court of Appeals for the Ninth Circuit previously held that the listing of marijuana in Schedule 1 of the CSA excludes the plant’s mature stalks, fiber produced from the stalks, and oil produced from the seeds of the plant.
DEA may remove a substance from the schedules if it finds it doesn’t meet the requirements to be included in a schedule, the petition observed. Before initiating a rulemaking proceeding to revise the schedules, DEA and the Department of Health and Human Services (HHS) are required under federal law to examine eight factors, including a substance’s potential for abuse and risks to public health, DEA has explained.
“To be included on any of the five schedules, a substance must have some potential for abuse," HIA and the Kentucky Hemp Industry Council noted in the petition. “The industrial hemp plant, with a THC concentration of three-tenths of a percent or less by dry weight, has no potential for abuse whatsoever. First, ingestion of industrial hemp, whether by smoking, eating or otherwise, will not cause any psychoactive effect at all, as has been established by studies going back over many years."
Hemp Defined as Marijuana under Federal Law
Since 1970, when the CSA was enacted under the Nixon administration, marijuana has been classified as a Schedule 1 controlled substance. Schedule 1 is the most restrictive drug category also reserved for the likes of ecstasy, heroine, LSD and peyote.
“Botanically speaking, any plant of the genus ‘cannabis’ constitutes marijuana under the CSA – regardless of whether the plant is referred to as ‘hemp,’ ‘marijuana,’ or any other name," DEA spokeswoman Barbara Carreno explained in an emailed statement.
Asked whether DEA presently distinguishes industrial hemp from marijuana, she reiterated the above statement. Carreno declined to comment on the June 1, 2016 petition or a specific timeline for responding to it. It took DEA more than 2 ½ years to deny the 1998 petition.
“Applicable law does not specify a timeline" to respond to the petition, Carreno said. “We’re working to complete the DEA portion of the required analysis in the most expeditious means possible."
If the petition were granted, it would clarify that states could permit the cultivation of industrial hemp for commercial purposes without violating federal law, explained Sandler, a member of the firm Sandler Reiff Lamb Rosenstein & Birkenstock PC, in a phone interview.
“The DEA has continued to maintain the position that hemp is marijuana and they don’t acknowledge … the Farm Bill changed anything other than that they now have to work with some states," said Eric Steenstra, executive director of HIA, in a phone interview. “I’m very hopeful that something positive will happen and that we’ll see a change in the policy, but given the history of DEA … I’m certainly not holding my breath."
DEA and Farm Bill
A number of states, including Colorado, Kentucky and Tennessee, are in the third season of growing hemp under the Farm Bill. In total, 29 states have passed hemp laws, according to the petition.
Since passage of the Farm Bill, “DEA has worked with various states and institutions to facilitate the importation of seeds," explained Carreno, who noted DEA continues “to support individual states’ initiatives to conduct research on the viability of industrial hemp pursuant to the Farm Bill."
Hemp advocates have blamed DEA for impeding industrial hemp programs carried out under the Farm Bill. In 2014, the Kentucky Department of Agriculture (KDA) butted heads in court with DEA because the agency had seized hemp seeds destined for Kentucky farms. Ultimately, then state agriculture commissioner James Comer reached a memorandum of understanding with the DEA, explained Jonathan Miller, a Lexington, Kentucky-based attorney representing the Kentucky Hemp Industry Council and a member of the law firm Frost Brown Todd LLC.
While farmers in Kentucky have accused DEA of seizing seeds in past years, delaying the planting of hemp and hurting the crop, this year has been a “smooth" one, said Miller, who represented a group of farmers in the 2014 litigation against DEA.
“This program is working but there is no reason we need to be going through this process," Miller said in a phone interview when asked about his support for the recent petition. “Hemp is a crop that has no psychoactive effect and there is no reason why it can’t be grown as any agricultural commodity, and the notion that it is scheduled on the Controlled Substances Act akin to heroine … is an outrage."
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