Just a few weeks after the landmark decision was issued in KaB, LLC v USPS, MLB 18-39 (2018) Courtney N. Moran, LL.M., achieved another victory before the United State Postal Service Administrative Court with a holding by Chief Administrative Law Judge James G. Gilbert, affirming the legality of mailing viable hemp seeds between pilot programs via USPS.
“Congress expressly permits the transportation of exempt industrial hemp, including the seeds thereof.”
RNF, LLC v USPS addressed the issue of whether unsterilized seeds derived from industrial hemp grown or cultivated pursuant to a pilot program established by Congress under the Agriculture Act of 2014 are nonmailable as a Schedule I controlled substance
Opinion
In this subsequent landmark Initial Decision, Chief Administrative Law Judge James G. Gilbert, reflecting on the decision in KaB, LLC v USPS, MLB 18-39 (2018), found that
“While the language of the Agriculture Act of 2014 does not expressly deal with the issue of the exchange of seeds, it does state that any part of the plant, whether growing or not, is industrial hemp. As I noted, I have earlier determined that CBD derived from industrial hemp is included under the definition of industrial hemp in the Agriculture Act of 2014. For largely the same reasons, I find that the seeds derived from exempt industrial hemp are also lawful. “Likewise, the CBD that is derived from exempt industrial hemp remains exempt for the same reason, it is a derivative of an otherwise lawful plant. If the plant is lawful, the derivatives of that plant are also lawful.” KaB, LLC, 2018 WL 4913891, at *9. In sum, the seeds of exempt industrial hemp are not a Schedule I controlled substance.“
“No DEA registration is necessary to send or receive shipments of exempt industrial hemp under the Agriculture Act of 2014. Kab, LLC, 2018 WL 4913891 at *5. Likewise, as the exempt industrial hemp at issue here is not a controlled substance, it does not fall within the definition of controlled substance in Publication 52, Hazardous, Restricted and Perishable Mail. To the extent that there remains an argument that the transportation of such seeds is not permitted expressly by the Agriculture Act of 2014, that argument is mooted by the passage of Section 729 in the Appropriations Act of 2018.“
In his opinion, Chief Administrative Law Judge Gilbert acknowledged that,
“The DEA has no administration or enforcement role here, thus its interpretation of the relevant statute is not entitled to any deference. I further note that the Judicial Officer has already ruled that the interpretations offered by the various federal agencies are at odds with the plain language of the statutes.“
The court concluded,
“Congress expressly permits the transportation of exempt industrial hemp, including the seeds thereof.”
Insight from Courtney:
In light of the signing into law of the 2018 Farm Bill yesterday which federally legalized hemp, the precedent we have set with this case is imperative as during the time rulemaking occurs by USDA for implementation of the new hemp legalization provisions and for up to one year after USDA finalizes the USDA plan or until the State/Tribal Plans for implementation of full hemp legalization within their jurisdictions are approved by USDA, states will still be operating under the agricultural pilot program authority provided in the 2014 Farm Bill. This judicial precedent will aid in the transition from the pilot programs to full legalization.