The Hemp Industrial Association takes the DEA to court this week

By Eric Sandy
Source: cannabisbusinesstimes.com

This week, several federal lawsuits will push marijuana legalization into a judicial spotlight. We wrote about these lawsuits in the February issue of Cannabis Business Times, and attorneys are now preparing their formal presentations for the courtroom. 

On Wednesday, oral arguments will be made in the Southern District of New York in reference to the federal government's motion to dismiss Washington v. Sessions. This lawsuit is helmed by former NFL player Marvin Washington and 12-year-old Alexis Bortell. The crux of their civil complaint is that the Controlled Substances Act (CSA) infringes on constitutional rights.  

Bortell spent much of her childhood suffering from severe, sometimes life-threatening seizures. At the time, Texas did not offer a medical marijuana program, and the family moved to Colorado in search of medicine for the young girl. These days, she rarely experiences a seizure. Her story has become a driving force behind this latest wave of federal cannabis litigation.

On Thursday, attorney Bob Hoban will offer oral arguments in support of his plaintiff clients in Hemp Industries Association v. Drug Enforcement Administration (DEA).

The crux of that lawsuit is the DEA’s stance toward industrial hemp and whether it conflicts with language in the 2014 U.S. Farm Bill. Within that landmark agricultural legislation, the U.S. Congress defined industrial hemp as “all parts of the plant cannabis sativa l., so long as the dried materials of the plant is less than 0.3 percent THC.”

But a January 2017 DEA “final rule” includes industrial hemp in its marijuana enforcement drug code, with the net result being no distinction between the non-psychoactive hemp compounds and the rest of the cannabis plant’s chemical makeup. According to the DEA, any amount of THC subjects the plant to the Controlled Substances Act. The HIA argues that cultivation of industrial hemp should be permitted legally, citing the Farm Bill language.

The current federal lawsuit has roots in a 2003 lawsuit, which bore much of the same argument. The Ninth Circuit Court of Appeals ruled in favor of the HIA in 2004.

In January of this year, 28 members of the U.S. Congress published a letter of support for the HIA. “The [DEA’s] Final Rule is inconsistent with the Farm Bill’s most fundamental purpose: to allow states that wish to experiment with commercial research and development of industrial hemp, including extracts and derivatives therefrom, to do so without interference from the DEA.”

In a public statement provided at the time the lawsuit was filed, Hoban’s associate, Garrett Graff, wrote, “We hope to accomplish a striking of the rule, permanent injunction of the rule and for the DEA to engage in the appropriate processes and procedures when making rules in the future. Alternatively, an amendment to the rule to make the definition of ‘marihuana extract’ consistent with existing law and reflect those portions and varieties of the plant which are in fact lawful could be considered.”