DEA
Hemp Ban Put on Hold
by Preston Peet
March 30, 2002
(Originally Published at HighTimes.com)
The DEA will not be allowed to outlaw hemp
foods or other products in the US without a court hearing. The
9th Circuit Court of Appeals granted a temporary stay on March
7, blocking the ban until after the end of hearings which begin
April 8. Until the court issues its ruling, hemp foods will continue
to be imported and sold legally in the US.
The DEA issued a reinterpretation of the
Controlled Substance Act of 1970 last October, declaring that
any foods containing any trace amounts of THC are a controlled
substance and therefore illegal. The Hemp Industry Association
(www.thehia.org),
an international trade group consisting of 275 member companies,
asked the 9th Circuit for a stay of the rule later that month.
The HIA asserts that the move by DEA was not an interpretive action,
but a "legislative and substantive" action.
"There were two things we were asking
for," said Eric Steenstra, president of VoteHemp, Inc., (www.votehemp.com),
a nonprofit hemp-industry advocacy group. "Number one was
for a stay, which has already been granted. This is temporary,
so that these companies can avoid going out of business while
this thing is dragging on. The other thing is for the court to
ultimately throw it out."
"I think it’s encouraging that
they are looking at the merits of the case," said Candy Penn,
executive director of the HIA, of the 9th Circuit ruling. "They
are looking at this closely. It gives us some hope they might
rule in our favor. Hemp foods are beneficial and a great nutritional
addition to anyone’s diet, so for them to try to stop hemp
from reaching the American public goes beyond ridiculous."
On Mar. 6, 22 members of the US Congress
sent a letter to DEA chief Asa Hutchison, telling him that because
the hemp industry offers US consumers legitimate, high-quality
products, the DEA rule "should encourage the development
and use of these products, and not set unwarranted barriers to
their production which cannot be overcome."
"We’re very optimistic," said
Steenstra. "For the court to issue a stay, there has to be
a likelihood we’re going to prevail on the merits of the
case, and that there is going to be irreparable harm by the action
of the agency being sued. Our argument is that the DEA rule was
published and went into effect immediately, with no notice or
comment. We had no say in the matter. The DEA’s claim has
been that these products have been illegal all along and now they’re
just trying to clarify the existing law, which is clearly just
a falsehood."
"I think this stay is a clear sign the
DEA is losing their argument in court," said Adam Eidinger
of Mintwood Media (www.mintwood.com),
which handles advocacy and media relations for VoteHemp. "I
don’t know of any other case in the history of the United
States of the DEA being blocked from doing anything. They seem
to get what they want. Here’s a case where they’re not
going to. It’s a huge victory for hemp activists, and the
biggest victory should come soon. Just be patient. Soon we will
see DEA lose the whole thing in court."
Violating Trade Agreements
The Canadian hempseed company Kenex Ltd. (www.kenex.com)
in Ontario formally notified the US State Department on Jan. 14
that it planned to file a NAFTA suit in the US over violations
of the trade agreement resulting from the "capricious and
arbitrary" DEA rule. Kenex, which produces hemp seed, oil,
and other goods made from hemp, and has been exporting them to
the US for five years, is seeking $20 million in damages. The
Canadian government has objected as well. "In reviewing the
interim rule there is no evidence that the effective ban on relevant
Canadian food products on the US market is based on any risk assessment.
Therefore, Canada objects to these measures."
Helping Kenex in the US, Steenstra, David
Bronner, president of Dr. Bronner’s Magic Soaps (www.drbronner.com),
and attorneys representing Kenex met March 25, with representatives
from the DEA and the State, Justice, Commerce and Treasury departments,
to see if the parties could reach an agreement before heading
to court.
"We had the opportunity to educate all
these other agencies about the situation, and got the DEA’s
view of reality," said Bronner. "Otherwise though, the
State Department and DEA are not looking to settle. They want
to go forward. So we’re going to wait and see what happens
with our 9th Circuit case, which may turn out to make the NAFTA
case academic. But if nothing’s been resolved, if we don’t
get a ruling by August, we’re going to be filing, taking
this case to the next step with the NAFTA claim, take it to trial
for arbitration. For now we’re just going to wait and see
how things develop."
"What Kenex has to decide is whether
or not they feel it is worth the cost of going ahead with the
arbitration to recover what they’ve already lost," said
NAFTA-law specialist Todd Weiler, a professor of law at both the
University of Ottawa and University of Windsor in Ontario, who
is giving legal advice to Kenex. "There are costs. Kenex
might say to themselves, ‘We got what we want, we can go
ahead and grow our business, we’re just going to suck up
the loss and go forward,’ or they may instead say, ‘these
bastards have cost us a lot of money and instead we’re going
to make them pay.’ That’s the call for Kenex to make."
To read the court filings, motions, letters
and more on this issue, visit: http://www.votehemp.com/news.html
