Hemp Legal Defense Fund
A collaborative effort of the hemp industry to protect our mutual legal interest by supporting important actions defending the legal status of hemp guaranteed by the 2018 Farm Bill.
Hemp Industries Association & RE Botanicals, Inc. v DEA
The hemp industry challenges the DEA’s interim final rule entitled “Implementation of the Agricultural Improvement Act of 2018” and its improper assertion of authority over legal hemp processing.
On Monday October 12, 2020, the hemp industry united and filed a lawsuit in the U.S. District Court for the District of Columbia, alleging that U.S. Drug Enforcement Administration (DEA) is unlawfully attempting to regulate certain products derived from lawful hemp by misinterpreting the 2018 Farm Bill. Specifically, DEA classifies intermediary hemp material (IHM) and waste hemp material (WHM), two necessary and inevitable byproducts of hemp processing, as Schedule I controlled substances. This lawsuit was brought on behalf of Hemp Industries Association and RE Botanicals, Inc. (“Plaintiffs”). Plaintiffs argued that Congress deliberately removed such commercial hemp activity from DEA's jurisdiction when Congress legalized hemp production, including hemp processing, via the 2018 Farm Bill. In September 2020 Plaintiffs also filed a filed a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit asking the court to review and set aside the interim final rule (IFR) issued by DEA in August and asserting that the DEA overstepped its authority and violated the 2018 Farm Bill by asserting jurisdiction over legal hemp material, and that the DEA did not follow the proper legal procedure in issuing the IFR. Since the IFR purports to be a final DEA action under the CSA, any regulated party that wants to challenge it is statutorily required to file what’s called a “petition for review” in federal appellate court. HIA did just that, and that case remains pending in the D.C. Circuit as case no. 20-1376. Importantly, the only relief HIA can hope to achieve through that lawsuit is an order from the court declaring the IFR unlawful and invalidating it.
The District Court case was dismissed in May 2021 on jurisdictional grounds, misinterpreting HIA’s claim as a challenge to a DEA rule published in August 2020 which must be heard in an appellate court. On September 28, 2021, Plaintiffs filed a brief appealing the May 2021 district court’s order to dismiss, arguing that the 2018 the District Court improperly construed Plaintiffs claim as a challenge to the IFR and that the dismissal was improper, and that the 2018 Farm Bill barred the DEA from having authority over hemp production activities.
"The text and statutory history show that the 115th Congress unambiguously intended to make [the U.S. Department of Agriculture] the sole regulator of hemp production, with a defined exception only for [the U.S. Food and Drug Administration]," the brief said. "The plain import of the 2018 Farm Bill must be to partially repeal DEA and CSA activities in the sphere of 'relating to hemp production.'"
The conflict here affects practices — hemp production and activities 'related to hemp production' — that lie at the very heart of the activity that the 2018 Farm Bill sought to place in the hands of USDA," Put simply, a degree of implied repeal is necessary to make the 2018 Farm Bill tick. That issue should be adjudicated by the district court in the first instance.
In rebuking DEA’s unlawful attempts to add natural THC to schedule I by administrative fiat, those opinions affirmed the hemp industry’s basic legitimacy under federal law. In the Interim Final Rule, however, DEA attempts to overrule both cases sub silentio by declaring natural THC a schedule I controlled substance again. HIA cannot stand idly by while DEA attempts to undo the decades of hard work it took to secure these landmark judicial victories.
What will my donation get me?
Donations to the fund will go toward the legal defense of the U.S. hemp industry. Donations, however, do not entitle anyone to receive confidential information about on-going litigation or case strategy. A donation does not establish the attorney-client relationship nor entitle anyone to interfere with, or otherwise exert control over, any HLDF’s attorney’s work.
What is HLDF?
The Hemp Legal Defense Fund is a nonprofit organization organized to raise funds for any legal actions useful to protect and support the United States hemp industry by challenging statutes, regulations, or other legal actions that endanger the legal hemp industry guaranteed by the 2018 Farm Bill, or the economic health or liberty of the industry. Legal actions may include challenges to unlawful exercises of government authority or government acts that violate the plain language and purpose of federal and state hemp laws.
HLDF serves to provide cost efficient management for the legal defense of the hemp industry. Consequently, HLDF embraces transparency to its donors and the clients directly served by any legal efforts it funds.
What legal actions will HLDF fund?
HLDF will help challenge laws or regulations that are damaging to the United States hemp industry and legally unsound. Application for funding is approved by the fund’s board, depending on the level of assistance sought and purpose of the legal action.
To date, all HLDF funds will go towards supporting the pair of legal actions filed by the hemp industry (described above) - Hemp Industries Association and RE Botanicals, Inc. v DEA. The legal actions filed in the U.S. Court of Appeals for the District of Columbia Circuit and the U.S. District Court for the District of Columbia challenge DEA’s unlawful efforts to regulate key steps of the hemp production process. Donations to the link above will go toward paying the litigation costs of this effort to protect the U.S. hemp industry.
How is HLDF and its efforts governed?
HLDF has a board comprised of hemp attorneys who have clients who wanted to contribute to an effort like HLDF with appropriate oversight and efficiencies. Funds raised will only be dispersed when the board agrees to do so and only for projects the board has previously agreed serve HLDFs goals. Donors and partner organizations will have access to records of expenditures to ensure effective use of funds. Any strategic partnerships with other organizations will be governed by memorandums of understanding documenting shared goals, obligations, and oversight mechanisms.
How else will HLDF funds be spent?
A small portion of funds raised will be spend on administrative costs (website, accounting, and communication). All donations are non-refundable. Any funds remaining at the conclusion of the current legal challenges, Hemp Industries Association and RE Botanicals, Inc. v DEA will be reserved for future actions consistent with the HLDF’s mission and as approved by the board.
All requests for funding will be weighed by HLDF with special consideration for activities that will affect the most far-reaching and positive outcomes.