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CBD companies harmed by DEA's interim final rule on hemp invited to file comment on lawsuit

Getty Images hemp plant
The Hemp Industries Association is seeking stories to help its court case.

Companies harmed by the interim final rule on hemp issued last Aug. 20 by the Drug Enforcement Administration can have their perspective enjoined in a lawsuit seeking to remove the DEA from regulating hemp—as explicitly mandated to do so in the 2018 farm bill.

The Hemp Industries Association, on behalf of RE Botanicals and sister company Palmetto Harmony, is requesting comment for its case. The HIA is famous for defeating the DEA in court starting in 2004 when it successfully won the right to nosh on hemp seeds.

“We have a robust case but we need more documentation for harm,” said HIA president Rick Trojan. “If they call us for evidence, we’d like to have that in our pocket.”

The HIA is seeking a stay in district court. Companies can go to this link to register their complaints.

The simple form lists five different broad criteria for registering how the DEA interim final rule on hemp has affected business practices:

  • Caused changes in business practices.
  • Delayed or undermined business deals, contracts or plans.
  • Created confusion among suppliers, local law enforcement or customers.
  • Created uncertainty or worry among business partners, employees or customers.
  • Resulted in state or local law enforcement interference.

“We’re looking for evidence of harm,” said Trojan. “If the news caused you to cool your jets, type of thing.”

The comments will be reviewed by HIA and its legal team and may be included in the lawsuit, but also may remain confidential with the HIA. Respondents will be asked permission again if the HIA deems the comment worthy of inclusion.

Lawsuit issues

But drug warriors do not go quietly into that good night, and the DEA remains in the picture. It issued an interim rule seeking to regulate the industry—in particular, against extractors. When processing hemp from the hempy biomass to oil, the intermediary hemp material (IHM) transiently contains THC levels above the legal limit of 0.3%. The DEA has taken that scenario, as well as waste hemp material (HWM) as another inevitable byproduct of hemp processing, as a reason to crack down on extractors.

Enter the 43-page HIA lawsuit. The HIA is seeking comment from anyone affected as part of the case it is building against the DEA.

The DEA’s interpretation of the farm bill has “serious, immediate, and irreparable consequences,” according to the HIA complaint. “Allhemp processors and manufacturers who work with and/or store IHM and/or WHM must now choose between ceasing to process, manufacture and/or store hemp; obtaining a Schedule I license from DEA; or risk criminal prosecution under the [Controlled Substances Act]. Given the centrality of hemp processing to the hemp industry’s supply chain, forcing processors to choose between the foregoing options would effectively destroy the entire hemp industry.”

The plaintiffs ask the court for a judicial determination that the definitions of hemp and THC in hemp in the 2018 farm bill includes IHM and WHM, and that such materials are therefore not controlled substances, and that the DEA lacks any independent authority to regulate any aspect of hemp production including IHM and WHM.

The lawsuit also makes note of the DEA’s continuous attempts to regulate the hemp industry as a means of informing the court of continuous and historic overreach.

It’s anybody’s guess which way the court will decide. On the one hand, the 2018 Farm Bill is rather explicit about writing the DEA out of the regulation of hemp. But the U.S. Department of Agriculture wrote a rule re-inserting the DEA. And the recent hubbub over buzzy delta-8 THC has raised eyebrows that this kissing cousin to get-high delta-9 THC, while technically legal per the farm bill, nevertheless is reason enough to get the DEA back in hemp’s business.

The HIA is a trade association that represents more than 1,000 member hemp businesses, including some 300 hemp processors and individuals involved in the manufacturing, distribution or sale of hemp extract and other products lawfully derived from hemp.

Law firms working on behalf of the HIA include the Hoban Law Group, Vicente Sederberg and Knight Law Office.

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