In a post-9/11 world, DEA wanted to concentrate on terrorism and was willing to explicitly legalize hemp products with any amount of THC, no maximum, for 96% of the industry (products not for human consumption, such as soap and fiber).
Today the maximum is lower, 0.3%, and DEA made life hard on hempsters before the 2018 Farm Bill because of this suit, and even now as it pressures USDA over max THC. HIA made bank by suing, and the lawyers got most of it.
I watched it in action, a perfect storm of fckery. A greed-driven hustle of epic proportions, getting members to agree to the suit. More than a half-dozen lawyers smelling $200,000 in billable hours applying a full-court press, literally harassing hemp companies until they agreed. I told them where they could stick it.
Ninth Circuit Court of Appeals Justice Kozinski’s dissent in HIA v DEA (2004): even plaintiffs admit the Interpretive Rule would have no effect and relies on too many “mights” … “because the opinion we issue today is gratuitous, I am unable to sign on to it.”
“I am not persuaded that this case presents a live controversy any longer. After notice and comment, the DEA has promulgated a regulation construing Schedule I of the Controlled Substances Act, 21 U.S.C. § 812(c), Schedule I(c)(17), as including both natural and synthetic THC. See 68 Fed. Reg. 14,114 (March 21, 2003).
Plaintiffs concede that, so long as this regulation remains in force, the agency’s interpretive rule makes no difference. The new regulation has thus “eradicated the effects” of the interpretive rule and mooted the controversy surrounding it. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).
My colleagues reach the contrary conclusion because “[e]ven if the new rule were found to be improper in the new appeal, plaintiffs would still face the possibility that the DEA might attempt to enforce the putative interpretive rule at issue here.” Majority op. at 8839-40, n.3.
This chain of reasoning relies on far too many subjunctives, “possibilities” and “mights” for a live controversy. We must review a legislative regulation with great deference to the agency’s institutional competence and expertise. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984). The most likely outcome of the new challenge, therefore, is that we will uphold the regulation. Even if we do not, our opinion striking it down will almost certainly alter the relevant legal landscape, superceding whatever force the interpretive rule may have had.
Because the opinion we issue today is gratuitous, I am unable to sign on to it.”
Read the case here: https://caselaw.findlaw.com/us-9th-circuit/1253723.html