Post-Farm Bill Importation of Industrial Hemp

As we previously blogged, the last subsection of the Agriculture Improvement Act of 2018 (the “Farm Bill”) amended the Controlled Substances Act (the “CSA”) to exclude “tetrahydrocannabinols in hemp,” where hemp “means the plant Cannabis sativa L. and any part of that plant . . . with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent . . . .”  A recent court decision has underlined the enormity of this change.  Innovative Nutraceuticals, LLC v. United States, No. 18‑1400 (C.D. Cal. Mar. 28, 2019).

Innovative sought to import industrial hemp with 0.2% tetrahydrocannabinol (“THC”) and took the sensible precaution of confirming with the U.S. Department of Agriculture that no permit was required to do so.  Unfortunately, the U.S. Department of Customs and Border Protection (“CBP”) didn’t agree because the CBP destroyed one package testing positive for cannabidiol (“CBD”), another testing positive for “marijuana,” and possibly destroyed a third with “THC extracts” present.  The CBP seized a fourth package and would only return it if Innovative agreed not to sue the CBP for damages relating to the seizure and paid to retrieve the seized package.  Understandably aggrieved, Innovative sued.  While the court dismissed Innovative’s suit except as relating to the third package, the court’s rationale is interesting.

The court neatly summed‑up the quandary of the pre‑Farm Bill CSA.  While THC testing was well‑known, the court could not “conclude that, as a matter of law, plant material containing as much as 0.2% THC necessarily falls within the CSA definition of marijuana.”  Moreover, “[c]ourts have consistently found that naturally‑occurring THC content of marijuana is irrelevant to whether it falls under the CSA” (emphasis added).  In other words, the language of the pre‑Farm Bill CSA overrode any evidence‑based conclusion that the packages contained only trace levels of THC.  However, the court dismissed Innovative’s claim for relief for future packages because they would be exempt from the CSA as amended under the Farm Bill.

Hopefully, this rather unfortunate turn of events will be a thing of the past post‑Farm Bill, but industrial hemp close to the limit of 0.3% may prove problematic.

If you have any questions about this post or any other related matters, please feel free to contact our Cannabis Law Practice Group.