Kentucky hemp standoff demonstrates DEA overreach

At a noon hearing Wednesday in the federal courthouse in Louisville, attorneys for the Kentucky Agricultural Department again squared off with representatives from the Drug Enforcement Administration (DEA) before Judge John G. Heyburn II, a Republican appointee with an independent streak.

The topic of the hearing: 250 pounds of hemp seeds, seized by the DEA earlier this month and still being held at the Louisville airport on its orders. The DEA contends that the Kentucky Agricultural Department must fill out a Permit to Import a Controlled Substance for the seeds — DEA Form 357. At the hearing, the assistant U.S. attorney representing the DEA, Ben Schecter, referred to these hemp seeds — with a straight face — as a “controlled substance.”

When agents seized the hemp-seed shipment on May 12, it represented one of the most egregious examples of the overreach of federal law enforcement power wielded by the DEA under the authority of the Controlled Substances Act (CSA), passed by Congress in 1970 and signed into law by President Richard Nixon.

Here’s why: Despite Kentucky’s passage of a state law in 2013 to establish a regulatory framework for growing hemp responsibly and Congress’ legalization of hemp pilot projects through the passage of this year’s Farm Bill, the DEA still contends that the hemp seeds at Louisville International are a Schedule I drug — as dangerous as heroin — under the CSA.

Saying that hemp seeds are as dangerous as heroin is laughable on its face, considering that a Schedule I drug is defined as having “no currently accepted medical use,” when we all know that 22 states (plus D.C.) have approved marijuana for exactly that reason. In addition, hemp is as far from medical marijuana as water is from moonshine: hemp looks like marijuana, but its content of THC (the psychoactive ingredient in marijuana) is less than 1 percent. In fact, hemp isn’t a drug or a medicine at all: It’s an agricultural product, and the CSA has nothing to say on the “agricultural use” of a so-called controlled substance.

The Kentucky hemp law goes out of its way to define hemp as containing less than 0.3 percent THC and as something distinct from illegal marijuana; however, the federal Farm Bill falls short of this distinction, approving pilot hemp projects in states that have established regulatory frameworks to do so responsibly, “notwithstanding the Controlled Substances Act.” (PDF) The authority of the DEA to seize this 250-pound shipment of hemp seeds rests entirely on this “notwithstanding.”

Kentucky changed its state law to permit hemp farming, the Farm Bill changed federal law to allow for hemp pilot projects, but “notwithstanding the Controlled Substances Act,” the DEA continues to claim that hemp seeds are as dangerous as heroin, no matter how ridiculous and untrue such a claim is — a position made even more preposterous as states such as Colorado and Washington engage in pilot projects of their own involving recreational marijuana use in every conceivable manner. Yes, any adult can legally purchase marijuana in Denver or Seattle, and yet the DEA goes out of its way to deny Kentucky farmers the ability to experiment with a crop that could diversify the state’s agricultural sector in all sorts of beneficial ways. 

This abuse of federal law enforcement power became too much for Kentucky Agricultural Commissioner Jamie Comer, a Republican. He filed suit last week against the DEA in federal civil court, announcing to the public, in a beautifully written press release well worth your time, “Enough is enough.”

The silver lining to this standoff is that it has awakened conservatives to what many Americans already understand: that the DEA is out of control. Just a decade ago, during the George W. Bush administration, drug-war hawks gloated at the federal government sentencing Tommy Chong to prison for the crime of selling glass bongs across state lines. Chong, half of the legendary countercultural comedy duo Cheech & Chong, represented a scalp in the culture wars that law-and-order conservatives felt they were winning.

Today in Kentucky, it’s law-abiding farmers who are feeling the anti-democratic weight of drug war policies that has been felt by others for decades. In a flash, the situation has turned middle-aged Republicans into college sophomores, complaining about the DEA as they pass a bong in the dorm room with a towel stuffed under the door.

On Wednesday, Kentucky Sen. Mitch McConnell met with DEA Administrator Michele Leonhart to call on her to release the seeds. “I again expressed my frustration that the DEA is using its finite resources to stymie plainly lawful hemp pilot projects at the very time Kentucky is facing growing threats from heroin addiction and other drug abuse,” he said in a statement released after the meeting.

Perhaps the only way to make the DEA stop claiming that hemp seeds are a threat to society equal to heroin is to reschedule marijuana out of the DEA’s jurisdiction. This task, once seemingly impossible, is not as unthinkable today, especially now that Republicans are beginning to wake up to the DEA’s overreach.

H.R. 689, which was drafted to protect states with medical marijuana programs from DEA interference by rescheduling marijuana, would also protect Kentucky’s hemp crop. John Yarmuth, Democratic congressman from Louisville, joined as a co-sponsor of this bill earlier this week in response to the DEA’s actions at the Louisville airport.

As for the DEA, it has so far refused to yield, despite the PR risks. The Farm Bill that authorized the hemp pilot programs was signed into law by President Barack Obama in early February, and yet at Wednesday’s hearing, Assistant U.S. Attorney Schecter said the DEA was “still in the middle of a policy analysis” of it, and so still won’t say what it thinks the Farm Bill says. When asked directly by the Kentucky Agricultural Department whether the DEA would release the seeds within 24 hours of receiving the demanded permit, Schecter refused to give a clear affirmative answer. 

By declining to answer with a simple “yes,” Schecter appeared to be playing another card in the DEA’s waiting game as it attempts to decline access to these seeds beyond the rapidly closing window in which to plant them. Attorneys for the Kentucky Agricultural Department stressed the importance of the immediacy of releasing the seeds, saying that any delay in planting past May 10 results in a loss of yield, and any delay past June 1 would result in the loss of data, which is the most important part of these first pilot programs.

Judge Heyburn, at the conclusion of the hearing, perhaps sensing that the DEA was not finished with its stalling tactics, stated that he was going to “keep the case open for a couple of days” to see how things work out. If Judge Heyburn had been confident that the DEA was going to release the 250 pounds of seeds within 24 hours of receiving the import permit, then there would have been no reason to keep the case open — a possible indication that the growing list of people skeptical of the DEA’s claims might now include a well-respected federal judge.