Companies Appeal Dismissal in Case Contesting DEA Hemp Rule

On Wednesday, Hemp Industries Association (HIA) and RE Botanicals, Inc. appealed the ruling in a lawsuit they had filed against the Drug Enforcement Administration (DEA) regarding a regulation from the agency limiting the concentration of hemp a company could put into one of their products without obtaining a license. The appeal will be heard by the D.C. Circuit.

The district court previously ruled that the question involved should not be before the district court, suggesting that the plaintiffs should file a petition for review with the court of appeals. The court dismissed the case, ruling that the dispute falls under the exclusive-review provision.

Specifically, the rule in question from the DEA mandated companies who were producing hemp products “with a concentration of greater than 0.3 delta-9 THC to obtain a Controlled Substances Act Schedule 1 registration.” Both HIA and RE Botanicals were concerned this new rule would result in them being prosecuted because of byproducts they use in their hemp production. 

The plaintiffs requested that two of the important byproducts involved in producing hemp should not qualify as “controlled substances,” despite both of the byproducts containing a concentration of delta-9 THC higher than 0.3, which the DEA had implemented as the new threshold.

The plaintiffs initially requested that the rule enacted by the DEA be considered for judicial review, and that ultimately the DEA should “not subject the products to the CSA’s registration requirements.” Judge James E. Boasberg denied this request for judicial review, claiming that the court was “powerless to entertain the merits of Plaintiffs’ entreaty.” Judge Boasberg recommended that the plaintiffs should instead file a petition for review with a court of appeals.

The plaintiffs will be represented by Yetter Coleman LLP, Vicente Sederberg LLP, and Kight Law.