Also – further commentary by OR cannabis lawyer
Published on Linked In
A colleague, Thomas Howard, made a video (link below) recently, claiming that federal circuit court precedent defining “hemp” under federal law was wrongly decided, smacked of judicial activism, and would have former Justice Antonin Scalia rolling over in his grave. Here’s the citation: AK Futures Ltd. Liab. Co. v. Boyd St. Distro, Ltd. Liab. Co., 35 F.4th 682, 690 (9th Cir. 2022) (“the only statutory metric for distinguishing controlled marijuana from legal hemp is the delta-9 THC concentration level.”).
I happen to agree with the precedent and wanted to respond to Thomas in a longer format than comments allow.
Thomas seems focused more on the distinction between derivatives and so-called synthetics. He argues that the term “derivative” should be read to only include substances already in the cannabis plant, and should exclude substances like D8 or THC-O. It’s not even clear from the video that he believes there’s a difference between “derivatives” and “extracts.”
I think this argument ignores the rest of the language in the statute defining hemp (7 USCS §§ 1639o(1)): “derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers.” One of the primary canons of statutory construction is called the “presumption against surplusage,” which basically says that when two different words are used, we should try to figure out the difference, because we shouldn’t interpret legislation in a way that makes words redundant.
Applied here, it means that we have to make sure we’re giving effect to all of the words in the statute. For example, according to Merriam-Webster (of which Scalia was a great fan), “isomer” means “one of two or more compounds, radicals, or ions that contain the same number of atoms of the same elements but differ in structural arrangement and properties.” That definition says nothing about how such a substance is derived or whether it’s intoxicating, and neither do the definitions of any of the other words in the statute.
So Thomas, I have to respectfully disagree that you’re channeling Scalia. I think you’re just interpreting based on vibes. And also, when all three of the judges on the opinion are Republican appointees and they’re citing Merriam-Webster multiple times in their opinion, it’s kinda hard to cry judicial activism and that Scalia would be turning over in his grave.
Frankly, I think Scalia would say that your argument that the definition of hemp is restricted to non-intoxicating compounds is, itself, judicial activism. Alternatively, maybe he would agree with you, because, let’s face it, Scalia’s “originalism” was often just a cover for evidently partisan outcomes. https://lnkd.in/gR4bjSmy
