Will the Courts Tell the DEA the Difference Between Hemp and Pot?
Two North Dakota farmers, one of them a state legislator, filed a federal lawsuit this week asking for a judgment declaring that the federal Controlled Substances Act (CSA) does not prohibit their cultivation of industrial hemp. In 2005 North Dakota legalized hemp farming, but the necessary state licenses initially required approval from the U.S. Drug Enforcement Administration. This year, after it became clear that the DEA would not give its blessing to hemp cultivation, the state legislature amended the law to waive that requirement. But now would-be hemp farmers are worried that if they proceed with their plans they could face federal prosecution.
The DEA refuses to distinguish between nonpsychoactive hemp, which by definition contains less than 0.3 percent THC, and marijuana, which has a THC concentration at least 10 times as high. Hemp is legally grown in many countries around the world where marijuana is prohibited, and products made from hemp fiber, seed, and oil are legally sold in the United States. But because of the DEA's intransigence, the raw material for these products cannot be grown in this country without fear of arrest.
In their lawsuit, state Rep. David Monson (R-Osnabrook) and Wayne Hauge, who has a farm in Ray, North Dakota, argue that the DEA is misreading the CSA, which specifically excludes the stalks, oil, and sterilized seeds of cannabis plants from the definition of marijuana. This definition, carried over the the Marihuana Tax Act of 1937, reflects Congress' intent to allow the continued cultivation of hemp. Monson and Hauge argue that it's unreasonable to claim that Congress meant to ban industrial hemp:
The CSA does not prohibit the Plaintiffs' planned cultivation of industrial hemp on their farms in North Dakota because Congress's own findings in the CSA, read together with the legislative history of the Act, suggest that Congress did not intend to preclude a state regulated regime in which only the non-regulated parts of the plant would enter commerce at all and there is absolutely no risk of diversion of drug marijuana by reason of the cultivation of the hemp plants themselves, which are useless as drug marijuana and the mere cultivation of which cannot in any way affect commerce, whether intrastate or interstate, in drug marijuana.
The CSA does not prohibit the Plaintiffs' planned cultivation of industrial hemp on their farms in North Dakota because Congress could not, in the absence of any risk of diversion, logically have intended to allow someone in Canada to grow Cannabis and export the non-regulated parts of the plant into North Dakota but not allow someone in North Dakota to grow a form of Cannabis useless as drug marijuana and sell or distribute the same non-regulated parts of the plant in the same state, North Dakota. And since Congress would not have logically intended to prohibit such sale or distribution, it could not logically have intended to prohibit intrastate commerce in viable hemp planting seed useless for the cultivation of drug marijuana and useful only for cultivation of industrial hemp for processing the non-regulated parts of the plant for commercial use.
The DEA's interpretation of the CSA vis-à-vis hemp already has been rejected by the U.S. Court of Appeals for the 9th Circuit, which blocked the agency's attempt to ban edible hemp products. In this case, however, there is the added complication that the hemp plants raised by U.S. farmers would include leaves and flowers, albeit with so little THC that they're worthless for getting high. Monson and Hauge emphasize that the leaves and flowers would stay on the farm. There is also the issue of the nonsterilized seeds that would be necessary to grow hemp, which they address by saying that the seeds cannot be used to grow psychoactive cannabis and would in any case stay in North Dakota, where their use would be regulated by the state.
But here is my favorite part of the suit: Even if Congress did mean to ban the sort of hemp farming authorized by North Dakota law, Monson and Hauge suggest, it does not have the constitutional authority to do so:
The CSA cannot be interpreted to prohibit the Plaintiffs' planned cultivation of industrial hemp on their farms in North Dakota because regulation of such cultivation, in the absence of any affect on commerce of any kind in the commodities which Congress has chosen to regulate under the CSA, would exceed congressional power under the Commerce Clause of the U.S. Constitution. Although Congress could regulate interstate commerce, and thus intrastate cultivation and production, of industrial hemp fiber and seed products, Congress has chosen not to do so. By applying the CSA to the Plaintiffs' proposed cultivation of industrial hemp, DEA would be extending its authority under the CSA into areas of interstate commerce Congress has expressly chosen not to regulate under the CSA. In-state industrial hemp plants themselves are in no way fungible with drug marijuana, whether moving in intrastate or interstate commerce, as no part of the industrial hemp plant has utility as a drug. The regulated parts of industrial hemp plants could not possibly be diverted into and "swell" or increase the supply of drug marijuana. Therefore, there is no potential for any effect on interstate commerce in drug marijuana. Intrastate cultivation of industrial hemp thus has no connection or effect whatsoever on the interstate commerce in drug marijuana that Congress has determined to regulate.
For those of us who were wondering, in the wake of the Supreme Court's determination that a pot plant on a California patient's windowsill is "interstate commerce," whether anything could be considered beyond congressional authority under the Commerce Clause, this sounds like a plausible prospect. Since industrial hemp is not a drug, it is even further removed from the interstate cannabis market than medical marijuana is. But note that Monson and Hauge's argument seems to hinge on the fact that Congress has not chosen to regulate the hemp market. If it did decide to do so, presumably it could control (or forbid) production in North Dakota, just as it does with other agricultural commodities.