Hemp Companies Fight Dismissal Of Immunity Suit

Hemp Industries Association and RE Botanicals, Inc., filed an opposition on Tuesday to an attempt by the United States Drug Enforcement Administration (DEA) to dismiss a lawsuit filed by the hemp companies. The plaintiffs purported that because hemp is legal under the 2018 Farm Bill, and removed from the Controlled Substances Act, the DEA should recognize the immunity provided to hemp companies under the altered law. 

“That immunity is a critical component of the 2018 Farm Bill. But over the past several months, DEA has disregarded this immunity both in its statements and conduct. Plaintiffs ask this Court for a judicial determination confirming the immunity,” the memorandum in opposition of dismissal explained. 

The defendant’s motion to dismiss was filed in late January. It argued that the lawsuit challenges a DEA internal final rule (IFR) regarding hemp which altered statutory definitions within the DEA. “The court of appeals have exclusive jurisdiction over any of the Plaintiffs’ claims related to the IFR or any other final decision,” the defendants purported. “If Plaintiffs are challenging only a hypothetical regulation or policy concerning manufacturing byproducts from Cannabis sativa L, then they also cannot establish Article III jurisdiction.” 

The plaintiffs opposed this argument, saying that they discussed the IFR “because it is a prominent symptom of the deeper structural issue: despite an unambiguous prohibition in the 2018 Farm Bill, DEA asserts and has acted as if it has the authority to regulate the production of hemp and hemp derivatives.” 

Their opposition discussed how hemp cultivation has expanded since the 2018 Farm Bill, and argued that the bill authorizes the plaintiffs and others to manufacture and possess “in-process hemp materials.” The hemp companies reiterated that they are not challenging the IFR, but are challenging the DEA’s application of the 2018 Farm Bill and asking the court “to vindicate an immunity that is entirely independent and collateral to the IFR.” 

Hemp Industries Association is represented by Yetter Coleman and Vicente Sederberg, RE Botanicals is represented by D. Rodney Knight, Jr. and Vicente Sederberg, and the defendants are represented by the Department of Justice.