On Tuesday, a hemp trade group and hemp retailer filed their appellate brief regarding a Drug Enforcement Administration (DEA) interim final rule regarding regulation of THC in hemp. The petitioners’ primary arguments are that the DEA’s rule “takes a step” that would prevent compliance with the U.S. obligations under other laws, that the DEA rule “would dramatically increase DEA’s control over the Cannabis sativa L. plant,” that the DEA did not perform the requisite formal rulemaking, and that then-acting DEA Administrator violated the Federal Vacancies Reform Act.
At issue is the DEA’s interim final rule entitled “Implementation of the Agriculture Improvement Act of 2018,” which became effective in August 2020. The DEA issued the rule in response to a recent round of statutory amendments to the Controlled Substances Act, 21 U.S.C. § 801. As later summarized by the D.C. district court, the DEA interim final rule “states that only hemp derivatives, extracts, and products exceeding 0.3% delta-9 tetrahydrocannabinol (THC) — the principal psychoactive component of the cannabis plant — shall be stringently regulated by the CSA.”
In September 2020, petitioners Hemp Industries Association and RE Botanicals, Inc. filed an appeal with the D.C. Circuit. One month later, in October 2020, the petitioners filed a similar suit in DC District Court.
The district-court complaint made similar claims as those parties made in the appellate case: Both matters focus on the DEA interim final rule. In the district court, the plaintiffs sought declaratory judgment and injunctive relief regarding several issues of hemp’s definition, THC in hemp as a Schedule I substance, and the DEA’s authority (or lack thereof) to issue the interim final rule. A few days after the district-court case was filed, the D.C. Circuit Clerk’s Office entered an order holding the appellate case “in abeyance pending district court’s decision.”
In May 2021, the D.C. district court dismissed the suit for lack of subject matter jurisdiction, stating that the plaintiffs’ “exclusive pathway” to dispute the DEA rule is through “a petition for review filed in the court of appeals.” And since the lawsuit “challenges an assertion of agency authority set out in the IFR [interim final review], it falls squarely within the ambit of that exclusive-review provision.”
As such, the plaintiff petitioners have now filed their appellate brief in the D.C. Circuit. In it, the petitioners make the arguments noted above: that the DEA rule is arbitrary and capricious, that the DEA did not follow proper procedure, and the rule is improper under the Federal Vacancies Reform Act.