This Is The Story Of The DEA's Fight With Hemp And CBD Oil That You Don't Know
By Brandon A. Dorfman
Apr 12, 2018
“Also, a funny story that takes a half-hour to tell so I won't tell it other than to say I attracted a cease and desist letter from the US Secret Service for stamping "I Grew Hemp" on all of the dollar bills coming out of George Washington's mouth,” recalled Joy Beckerman about her early days as an advocate for hemp.
“It turned out to be really fantastic-- the Associated Press took it, that story, so it went coast to coast.”
Joy Beckerman is an eclectic, knowledgeable woman whose passion for all things hemp ooze from every word she speaks. An Officer of The Board of The Hemp Industries Association, hers was a pivotal, though not singular voice, in challenging the DEA ruling that, in effect, any extracts from the genus cannabis plant containing any cannabinoids are now considered a Schedule I drug —a classification which would include CBD oil.
Beckerman, who attended opening arguments, has a positive outlook for the future of the case.
“I am so pleased and grateful for our legal team,” said Joy, sounding ecstatic. “Again, Patrick Ogden and Bob Holden and Garret Graff [attorney’s for HIA], I thought they did a spectacular job. Keep in mind that these Justices were assigned our case ten days before oral argument. It's not like they've been reading the briefs since we started the case. That's not how the 9th Circuit works and they were very-- you could tell they were very smart men and that they had probably read some of the briefing, right?”
“I mean, I am so proud and grateful to our lawyers and, you know, they are so dedicated to fighting, what I call, the untenable confusion and injurious condition that is being caused by this marijuana extract rule,” Beckerman continued.
We should surely be like into peace, love, and music on our way out.
Joy Beckerman is one of those people that is so successful that she redefines the term. A chance encounter with a flyer at a Grateful Dead concert in Foxboro, Massachusetts in 1990, a random solicitation that most other people would have tossed away, set Joy on the path to where she is today. As she explained, the flyer, a basic fact sheet extolling the benefits of industrial hemp, crossed her path a few years after The Emperor Wears No Clothes by Jack Herer and Chris Conrad had come out.
“So, at the time I thought, you know, we were on the way to killing the planet but that we should surely be like into peace, love and music on our way out. So, that flyer that day I don't believe everything I read. I was raised by a skeptical attorney, but it affected me on a cellular level. It was sort of a convergence of a sense of planetary healing and a sense of justice that converged, and it changed the trajectory of my life,” Joy recalled.
In late 1994 she opened up a hemp store. It was the first hemp store in the state of New York, in Woodstock, called Heaven on Earth. When the inaugural hemp bill passed in Vermont in 1996, she was appointed to serve as Secretary of the Vermont Hemp Council, picking up her family and relocating to Burlington. Then, by mid-1998 that position had ended and Joy, a single mother of two boys moved to Seattle and began a dual career in compliance and complex civil litigation. She worked on such high profile cases as the Exxon Valdez oil spill, and Enron.
“I was actually lead paralegal in the largest municipal security fraud case in the history of the state of Washington. Anyway. All of that experience just has served tremendously for my advocacy, obviously, in industrial hemp and in all forms of cannabis, but clearly, industrial hemp is my specialty, my love, my forte, my commitment. So, then I formed two-- Hemp Ace International which is where I do consulting, legal support and expert witness and brokering services. Mostly all law policy advice work other than the brokering. I drafted legislation with a team of wonderful legislators, of course, two stand-alone bills that we worked very hard.”
Joy has since returned to New York just recently, and along with her work at HIA she sits on the National Board of Directors of NORML. She runs Hemp Ace International which is where she does her consulting, legal support, and expert witness and brokering services.
“I think I'm probably the first person in the history of the cannabis movement to be dealing with both of those national boards at the same time and I just consider it to be a very high honor. I'm fairly addicted to non-profit work,” Joy said.
The good shit was in the resins, man.
Asking Joy Beckerman to briefly summarize the case against the DEA over the scheduling of CBD oil is akin to asking James McPherson for a Cliff’s Notes version of the causes of the Civil War. Both a compliment and a testament to her knowledge of the subject, Beckerman, like Mcpherson before her, begins her tale quite some years prior to the issue at hand.
The definition of marijuana —21 USC 80216 —uses the words “resins” three times, Joy notes, twice in the first sentence and once in the second sentence. And this definition, which carries itself from the 1937 Marihuana Tax Act through to the 1970 Controlled Substances Act is very purposeful.
“So, there's this whole engineering, and we look at this definition, and we say, man, the architects of that definitely knew that the good shit was in the resins, man,” said Joy, giving perhaps the world’s most intense history lesson.
For years it was always understood that every part of the plant was illegal except for the mature stalk and the sterilized seed. Even that, the cold-pressed oil in the sterilized seed, the DEA tried to make a Schedule I substance. HIA challenged that ruling at the turn of the millennium and won, keeping hemp seed oil legal to manufacture.
From resins to isomers, to salts and compounds —over the year the DEA has attempted to make illegal nearly every part of the plant, Joy noted, unapologetically labeling their moves as “excessive reach.”
Cannabidiol, or CBD oil, would be no different. But Joy and the HIA and their legal team have heard all of these arguments before. And this time they were ready.
“As our lawyer Bob Holden, and our brilliant legal team including Patrick Ogden who was our lawyer in those prior two cases, a true mastermind, clearly point out in these oral arguments, the genus cannabis in and of itself is not scheduled,” recalled Joy. “In fact, it's only when you look at the schedules the word marijuana and tetrahydrocannabinol; those are the two things with regard to cannabis that are on the controlled substance act as scheduled, not the genus cannabis and the definition and no other cannabinoid other than tetrahydrocannabinol.”
“That's the only one. Marijuana and THC period.”
A four-digit drug code concerning “marihuana extract.”
In their summary of the oral arguments in front of the U.S. Court of Appeals for the 9th Circuit, lawyers for the HIA explained that the case against the DEA, filed on January 13, 2017, came in response to the implementation of a four-digit drug code concerning “marihuana extract” —Drug Code 7350. Not only does 7350 overplay its hand in attempting to include any and all cannabinoids from genus cannabis, such as CBD oil, it is now being used as a means to go after the legal hemp industry.
Following the passage of the Agricultural Act of 2014, otherwise known as the Farm Bill, an entire industry re-emerged for the first time since the days of colonial rule. But now, as per oral argument, 7350 has given law enforcement agencies carte blanche to pursue civil seizures and criminal enforcement actions against all of the legal hemp industry.
Notably, in early January, 29 members of Congress filed an Amicus Brief in support of the HIA. As the summary of oral arguments noted:
This Amicus Brief went into great detail to outline the scope and intent of the Farm Bill, and more importantly, detailed the disconnected timeline of back-and-forth interactions between Congress and the DEA over the express efforts by Congress to legalize hemp and of the DEA to ignore Congressional intent (Farm Bill, Spending Bill appropriations provisions, etc.) and to baselessly attempt to reign the industry in (Statement of Principles, Drug Code 7350 and its Clarification, etc.)
So confident were the HIA legal team in the power of the Amicus Brief that they concluded the passage by noting, “The Amicus Brief is a required read for anyone participating in this industry.”
In total, the HIA team laid out four fundamental flaws with code 7350 in oral arguments in front of the 9th Circuit. Aside from considering the fact that the rule attempts to schedule genus cannabis incorrectly, and the issues with the Farm Bill, lawyers for HIA alleged “government overreach” and “staleness,” the five-year delay between the Proposed Rule and the Final Rule.
“Because of the HIA’s intrepid leadership, the boldness of the fellow Petitioners, Congressional support through the Amicus Brief, and the Hoban Law Group’s skilled legal efforts, there are a great number of reasons to remain positive,” the summary reads in conclusion.
A proposed rule here to define this marijuana extract.
When Joy Beckerman tells the story of Drug Code 7350, one cannot help but become enraptured. In preparation for a continuing legal education seminar she was teaching, Joy, as she had done numerous times in the past, reviewed DEA form 225.
DEA form 225 is to register to conduct business, whether it is to import, export, distribute, or research a controlled substance. Anyone who touches a controlled substance will fill out DEA form 225. As Joy noted with some exasperation in her voice, nobody working with CBD oil fills out this form.
In fact, according to Joy, DEA form 225 was the same form between November 1999 and April 2012.
“So I look at the back, and in April of 2012, the schedule had changed,” Joy recalled. “Now, where it used to just say marijuana now all of a sudden it says marijuana/cannabidiol [CBD] out of the clear blue sky and then it has the drug code for marijuana and then this made up drug code for cannabidiol which is not even the drug code that they ultimately adopted!”
Joy began to think of reasons why the form may have changed.
“So, anyway. I'm like, why the hell? What occurred? I mean, in my mind I thought well, I see. Maybe they were catching up because GW Pharmaceuticals and a couple of other companies had filed these investigations of new drug applications with the FDA and DEA and maybe it took a few years for them to be like oh, wait a minute.”
Soon, Joy was on the phone with the Drug Divergent Control Unit of the DEA, trying to find out why CBD oil was listed as a Schedule I substance. That’s when Joy learned of the proposed new rule.
“She goes oh, let me check. Puts me on hold, she comes back like five minutes later, and she says oh, it looks like on July 5th, 2011 and meanwhile, so you know, I'm talking to her in July of 2016 because she says in July of 2011 there was a proposed rule here to define this marijuana extract.”
You wanted clarification? Here's your clarification.
It’s hard to imagine two more different people than Joy Beckerman and Senate Majority Leader Mitch McConnell. So when Joy notes that the Senator and herself come down on the same side of the hemp issue, it can be a bit jarring at first.
To clarify, the farm bill says that in states that permit the cultivation of hemp there can be something called an agricultural pilot program. An agricultural pilot program is a program to study the growth, cultivation, or marketing of industrial hemp. As Joy noted, this is the feds making a pathway for the states to reintroduce the crop with federal blessing. They did it by defining industrial hemp and by defining agricultural pilot programs.
The key to the whole thing is that it starts out with the words, "Notwithstanding the controlled substances act.”
“So, now we're moving back up to August again of 2016,” Joy recalls with a subtle intensity. “The USDA finally puts out this paper, this joint paper, although we all know the DEA is actually the one that writes it, and it says no, no, no that definition doesn't fly with us. The definition of industrial hemp is actually this.”
“I mean, understand the arrogance — they're actually saying, they're literally like no, this is the definition. No, actually the law is telling you assholes what the definition is.”
At that point is where both the HIA and Senator McConnell cross paths, as each sent out a letter asking for clarification. McConnell, it turns out, is a big advocate for hemp. He was one of the federal legislators of the farm bill, and Joy, never one to mince words commends him as someone who demonstrates a true command of the understanding of some of the complexities of the farm bill.
“[McConnell] attaches this 4-page letter from Professor David Williams at the University of Kentucky who's like one of the leading hemp cannabinoid researchers in North America explaining how completely safe and important this research is to the state of Kentucky and potentially the world,” explains Joy. “Then, on top of that, the Kentucky Department of Ag sends a separate letter seeking clarification, again, very detailed showing a very clear command of an understanding of all the complexities.”
More letters follow, including one from fellow Kentucky Senator Rand Paul, another “hemp hero” who has nothing else in common with her, according to Joy. The DEA responds to no one, not the HIA, not Joy’s emails, not even the Senators. It is a total blackout.
“Apparently, in response to my letters too that I sent, the emails that I told you I sent in July which were practically interrogatory. On December 7th, and I guess that it was published in the Federal Register on December 14th, but the truth is it was on December 7th if you look at the final rule,” notes Joy with the tension in her voice rising.
“Chuck Rosenburg signs the final rule even though it had been in the making for five and a half years and in response to all those impassioned letters begging for the freedom of hemp-derived CBD they issue the finalization of the marijuana extract rule essentially sticking their middle fingers up at Mitch McConnell, the Kentucky Department of Ag, the Hemp Industries Association, Rand Paul and all his buddies.”
“You wanted clarification? Here's your clarification.”
The board of directors, the heroes that they are...
In the end, Joy went to the board of the HIA saying that something had to be done. She was not on the board at the time, but one of the founding board members of the HIA brought her into an email conversation with the board. Joy pressed that the DEA was not giving up anything, not giving up any wiggle room. She felt they needed to do something about this in the same way they did something about it in 2001.
“It's so analogous to this same set of facts,” Joy recalled. “They created drug codes for literally cold-pressed oil from hemp seed oil and they were going to make it a Schedule I controlled substance. Basically, the same situation and there was quite a debate, oh my goodness. The concern was huge because, how can we actually do this thing, you know?”
“In the end, thank god, the board of directors, the heroes that they are, along with the help of our then new Executive Director, as well as our old Executive Director, was tremendously helpful in this case getting meetings for ultimately the Amicus Brief.”
Bob was a cowboy.
A week prior to oral arguments 23 stores in Tennessee were raided by local law enforcement for selling CBD oil and other CBD products. Owners were given the “perp walk” in front of the news camera’s, and the stores were padlocked shut. Operation “Candy Crush” as it was known made national headlines, but this time, the public railed against law enforcement.
“Well, this situation with Tennessee, brother, that was definitely some groundbreaking stuff and you’re going to see in the oral arguments because of very particular rules in the Court of Appeals you can't bring in any new evidence that wasn't already a part of the administrative record, they're very strict on those rules, but Tennessee it happened the week before. Bob was a cowboy, and he figured out a way to at least mention it.”
Joy continued, ”Not only did they raid them, they padlocked the doors! I mean, you're going to prevent these people from conducting business and earning a living over gummies?”
Her anger is evident as she recalls other incidents of fear-mongering when it comes to CBD oil and other CBD products. One such incident, she recalled, cost several military personnel their uniform —and almost cost them their freedom.
“I spent a week at an Air Force Base in Texas and now, granted, it's different in the military, I get it, but it’s hemp-derived CBD and he was stationed in military prison and eight other airmen and one air woman, seven airmen and one airwoman, had already been discharged and lost all of their GI Bill benefits because they bought CBD based additive from him.”
Joy continued, “Hemp-derived CBD. Had it not been for the total ineptness of the government in that trial so they walked on a technicality, that poor boy would have gone to military prison because after two days of trying to explain to the judge the difference his ruling was that I as an expert witness for the defense would not be allowed during the trials to use the words industrial hemp or hemp. In that courtroom only marijuana exists to the point where when opposing counsel did their opening argument they were allowed to call the hemp-derived CBD based additive, they were allowed to call it marijuana.”
The untenable confusion and injurious condition.
Joy, who was present for oral arguments, came away feeling positive. But she knows not to take anything for granted.
“They're going to have their clerks digest and chew up the legal arguments, and they're going to take their time to deliberate so that they can render the best decision that they can. So, what I thought was that the questions and, of course, it's the torture of the lawyer and of the clients, of the legal team to literally analyze and re-analyze every question, every facial expression, every piece of body movement you're analyzing. What did he mean?”
She continued, ”I mean, I am so proud and grateful to our lawyers and, you know, they are so dedicated to fighting, what I call, the untenable confusion and injurious condition that is being caused by this marijuana extract rule. So, I really thought in that respect it was great.”