September 21, 2018

Appeal of the Determination on Nonmailability

KAB, LLC v. UNITED STATES POSTAL SERVICE

P.S. Docket No. MLB 18-39

APPEARANCE FOR PETITIONER:
Courtney Moran, Esq.
EARTH Law, LLC

APPEARANCE FOR RESPONDENT:
Julie Hanlon, Esq.
Acting Inspector Attorney

INITIAL DECISION

On February 9, 2018, Appellant KaB, LLC, timely appealed from a determination of nonmailability by the United States Postal Inspection Service (USPIS) of a package shipped by Appellant to an intended recipient in Sandy, Utah.  39 U.S.C. § 3001; 18 U.S.C. § 1716; 39 C.F.R. Part 953.  In a telephone conference on June 14, 2018, the parties agreed that the matter could be addressed by cross motions for summary judgment and were ordered to file a Joint Stipulation of Facts and their respective cross motions not later than June 25, 2018. Order and Memorandum of Telephone Conference, June 14, 2018.  Both parties timely filed their motions for summary judgment.  The record was closed after receipt of additional supplemental materials on July 19, 2018.

RELEVANT FACTS NOT IN DISPUTE

1. On January 10, 2018, a Priority Express mailpiece bearing tracking number EL915302951US was determined to be nonmailable and was detained by the USPIS in Denver, Colorado based upon the parcel emitting an odor of a controlled substance (Respondent’s Memorandum in Support of its Motion for Summary Judgment at 1). ¹
2. On January 11, 2018, notices were sent to the sender and recipient advising them of the detention.  Id.
3. On January 18, 2018, Inspectors obtained consent from the recipient of the mailpiece to open it.  It was opened and found to contain approximately 1170 grams of a white powder identified as a cannabinoid product.  Id.
4. Cannabidiol (CBD) is a derivative product of the plant Cannabis sativa L (Declaration of Dr. Terrence L. Boos, dated March 16, 2018, ¶ 2).
5. The parties stipulate that Appellant KaB, LLC holds an Industrial Hemp Registration (2017-# 68718; 2018-#74408) issued by the Colorado Department of Agriculture, compliant with the Colorado Industrial Hemp Regulatory Act and the Agricultural Act of 2014, Section 7606 (Appellant’s Exhs. A and B; Joint Stipulations of Fact, ¶1).
6. The parties stipulate that the September 26, 2017, ² letter from the Colorado Department of Agriculture, Program Manager Industrial Hemp Program, which includes the “Industrial Hemp Inspection and Chain of Custody” paperwork, provides crop test results showing the industrial hemp derived (CBD) isolate (shipped by KaB, LLC) was produced from an industrial hemp crop testing at 0.07% tetrahydrocannabinol (THC)( Appellant’s Exh. C; Joint Stipulations of Fact, ¶2).
7. The parties stipulate that the January 9, 2018 Mile High Labs CBD Isolate Test Results show extremely low levels of THC in the industrial hemp-derived CBD isolate (Appellant’s Exh. D; Joint Stipulations of Fact, ¶3).
8. The CBD isolate at issue here contains a delta-9 THC concentration of not more than 0.3 percent on a dry weight basis (Appellant’s Exhs. C and D).
9. The industrial hemp derived CBD isolate at issue here was grown or cultivated in Colorado, a state that permits the cultivation of industrial hemp (Appellant’s Exhs. A and B).

DISCUSSION

Before me is the question of whether CBD grown or cultivated from industrial hemp pursuant to a pilot program established by Congress under the Agriculture Act of 2014 is nonmailable as a Schedule I controlled substance.  39 U.S.C. § 3001; 7 U.S.C. § 5940.  I begin by discussing the relevant provisions of the Controlled Substances Act and the Agriculture Act of 2014.  21 U.S.C. §§ 801–971; 7 U.S.C. § 5940.
Congress enacted the Controlled Substances Act (CSA), as a comprehensive regime to combat drug abuse and control drug traffic.  See Gonzales v. Oregon, 546 U.S. 243, 250 (2006).  The CSA divides all controlled substances into five schedules.  21 U.S.C. § 812(a).  Schedule I substances are subject to the most stringent controls.  Id. at § 812(b)(1).  It is a violation of federal law to manufacture, distribute, or dispense a Schedule I controlled substance without a Drug Enforcement Administration (DEA) registration.  Id. at §§ 822, 823, 841(a).³
The CSA defines “marijuana” to include “all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.”  21 U.S.C. § 802(16). ⁴  Marijuana is a Schedule I controlled substance.  Id. at § 812.  CBD is a derivative product of the plant Cannabis sativa L.  See Relevant Facts Not in Dispute, supra ¶4.  As I have previously found, CBD that is a derivative of the marijuana plant, as defined under the CSA, is nonmailable.  See United States Postal Service, Publication 52, Hazardous, Restricted, and Perishable Mail, § 453.31 (Aug. 2017)(“If the distribution of a controlled substance is unlawful under 21 U.S.C. §§ 801–971 or any implementing regulation in 21 CFR Chapter II, then the mailing of the substance is also unlawful under 18 U.S.C. § 1716.”); see also, Sansouci v. United States Postal Service, MLB 18-9, 2018 WL 2045023 (April 13, 2018).
In 2014, Congress passed as part of the Agriculture Act of 2014, section 7606, which was entitled “Legitimacy of Industrial Hemp Research.”  Agriculture Act of 2014, Pub. L. No. 113-79, § 7606, 128 Stat. 649, 912 (2014)(codified at 7 U.S.C. § 5940).
(a) In general Notwithstanding the Controlled Substances Act (21 U.S.C. 801 et seq.), chapter 81 of title 41, or any other Federal law, an institution of higher education (as defined in section 1001 of title 20) or a State department of agriculture may grow or cultivate industrial hemp if—
(1) the industrial hemp is grown or cultivated for purposes of research conducted under an agricultural pilot program or other agricultural or academic research; and
(2) the growing or cultivating of industrial hemp is allowed under the laws of the State in which such institution of higher education or State department of agriculture is located and such research occurs.
(b) Definitions In this section:
(1) Agricultural pilot program The term “agricultural pilot program” means a pilot program to study the growth, cultivation, or marketing of industrial hemp—
(A) in States that permit the growth or cultivation of industrial hemp under the laws of the State; and
(B) in a manner that—
(i) ensures that only institutions of higher education and State departments of agriculture are used to grow or cultivate industrial hemp;
(ii) requires that sites used for growing or cultivating industrial hemp in a State be certified by, and registered with, the State department of agriculture; and
(iii) authorizes State departments of agriculture to promulgate regulations to carry out the pilot program in the States in accordance with the purposes of this section.
(2) Industrial hemp The term “industrial hemp” means the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.
(3) State department of agriculture The term “State department of agriculture” means the agency, commission, or department of a State government responsible for agriculture within the State.
7 U.S.C. § 5940.  The interplay between this section and the CSA has been the subject of considerable debate among litigants and proponents of the cannabis industry on the one hand, and the executive agencies charged with enforcement of federal drug laws on the other.  Not surprisingly, there has been much debate regarding the practical and legal impacts of this statute.
This matter is before me on cross motions for summary judgment as the facts at issue are not in dispute.  I start by reiterating that the CBD isolate seized by the USPIS was grown and cultivated under 7 U.S.C. § 5940.  See Relevant Facts Not in Dispute, supra ¶¶5-9.  The industrial hemp from which it was derived meets the definition of industrial hemp contained in the act.  7 U.S.C. § 5940(b)(2).  KaB, LLC, is licensed under the Colorado Department of Agriculture in compliance with the provisions set forth above to grow or cultivate industrial hemp.  7 U.S.C. § 5940(b)(1)(b)(iii).  Accordingly, the CBD isolate at issue here was lawfully grown under the statutory exception provided in the Agriculture Act of 2014. ⁵  7 U.S.C. § 5940.
The question remains, however, what the legal effect is of the exception carved out by Congress for the growth and cultivation of industrial hemp.  Here, we have two statutes in apparent conflict.  The CSA, which established a broad definition of marijuana sufficient to include all parts of the plant Cannabis sativa L, and the subsequent definition of industrial hemp, also clearly including all parts of the plant Cannabis sativa L.  The main difference between the two definitions that forms the basis for this conflict lies with Congress’s express language that any Cannabis sativa L plant that contains a delta-9 THC concentration of less than 0.3% on a dry weight basis is industrial hemp.  7 U.S.C. § 5940(b)(2).  While the CSA definition of marijuana has been interpreted to include all derivatives of the plant Cannabis sativa L regardless of THC concentration, the Agriculture Act of 2014 draws a clear and distinct difference by delineating that the plant with less than 0.3% THC concentration is industrial hemp.  Id.
There is significant information in the public domain that discusses the potential commercial market for industrial hemp.  States that permit the growth of industrial hemp do so as an agricultural product for many reasons, well beyond the known hallucinogenic properties of marijuana.  Proponents argue that the lack of discernable THC in industrial hemp creates a market for products derived from industrial hemp without concern for any hallucinogenic effect.  Indeed, the stated purpose of the “Legitimacy of Industrial Hemp Research” section adopted by Congress was to explore those potential markets.
Nevertheless, after passage of the Agriculture Act of 2014, the federal enforcement agencies including the DEA, United States Department of Agriculture, and the Food and Drug Administration issued a Statement of Principles on Industrial Hemp (SOP) that reiterated their position that the sale and transportation of industrial hemp across state lines was prohibited (among other additional restrictions).  Statement of Principles on Industrial Hemp, 81 Fed. Reg. 53,395 (August 12, 2016).  This SOP generated substantial concern among advocates of industrial hemp research and members of Congress supporting the growth of an industrial hemp market.  The legal effect of this SOP has not yet been adjudicated by any court to date, but the SOP itself states that it “does not establish any binding legal requirements.”  Id. at 53,396.  In an amicus brief filed by members of Congress in a recent Ninth Circuit matter, and in correspondence from members of Congress to agency officials, the SOP’s legitimacy as a valid interpretation of the Agriculture Act of 2014 was strongly criticized.  See Appellant Exhs. E, F, and G.
While much policy has been debated, the issue before me is one of statutory construction.  As with all questions of statutory construction, we begin with the plain language of the statute.  It is clear from the plain language of the statute that Congress adopted a definition of industrial hemp that is different from the language set forth in the CSA for marijuana. ⁶  By choosing to define industrial hemp based upon the concentration of THC in the plant Cannabis sativa L, Congress did not amend the CSA so much as carve out a clear exception for industrial hemp.  The language “[n]otwithstanding the Controlled Substances Act” is particularly instructive in this regard.  “The Supreme Court has indicated as a general proposition that statutory ‘notwithstanding’ clauses broadly sweep aside potentially conflicting laws.”  United States v. Novak, 476 F.3d 1041, 1046 (9th Cir. 2007)(citing Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993))(“As we have noted previously in construing statutes, the use of such a ‘notwithstanding’ clause clearly signals the drafter's intention that the provisions of the ‘notwithstanding’ section override conflicting provisions of any other section.”); see also Student Loan Fund of Idaho, Inc. v. U.S. Dep't of Educ., 272 F.3d 1155, 1166 (9th Cir. 2001) (“[T]he ‘[n]otwithstanding any other provision of law’ clause demonstrates that Congress intended to supersede any previously enacted conflicting provisions.”).
Here, Congress clearly “swept aside” the provisions of the CSA, at least in so much as it otherwise restricts the growth, cultivation, and marketing of industrial hemp.  In doing so, Congress removed this specific definition of industrial hemp from the restrictions of the CSA, and along with it, the licensing and regulatory authority of the DEA as it applies to the narrowly defined industrial hemp at issue here, and it gave that authority to the various states.  In other words, industrial hemp that meets the narrow restrictions of 7 U.S.C. § 5904 is not a Schedule I controlled substance, and its growth and cultivation does not require DEA licensing for cultivation nor is it subject to DEA oversight.  See Hemp Indus. Ass’n v. U.S. Drug Enf’t Admin., 720 F. App’x 886, 887 (9th Cir. 2018)(“The Agricultural Act contemplates potential conflict between the Controlled Substances Act and preempts it.”).  Industrial hemp grown or cultivated under 7 U.S.C. § 5940, although part of the same plant Cannabis sativa L, is not marijuana as defined by the CSA.  See supra note 6.  While creating a form of Cannabis sativa L that is not a controlled substance under the CSA (hereinafter referred to as “exempt industrial hemp”), Congress nevertheless did choose to place certain restrictions on its growth and cultivation.
While it is clear that Congress carved out a narrow exception, it is not necessarily as clear that this exception permits the commercial sale of exempt industrial hemp or its derivative products.  The Postal Service persuasively argues that use of the terms “growth,” “cultivation,” and “marketing” do not expressly provide for the sale or distribution of industrial hemp products across state lines, or in states where the sale is otherwise prohibited.
The term “marketing,” to the extent it can be defined precisely, focuses more on the creation of demand for a product than it does on the getting customers to pay for those products.  However, the term itself is subject to multiple interpretations.  In some definitions, marketing includes the sale of goods.  See Marketing, Merriam-Webster’s Collegiate Dictionary (11th ed. 2006)(“[t]he act or process of selling or purchasing in a market.”).  In others, it is distinguished from the sale of goods alone.  For example, “marketing” is defined by the American Marketing Association as: 
“the activity, set of institutions, and processes for creating, communicating, delivering, and exchanging offerings that have value for customers, clients, partners, and society at large.”
https://www.ama.org/AboutAMA/Pages/Definition-of-Marketing.aspx (visited September 12, 2018).  Black’s Law Dictionary includes a definition that incorporates both “the act or process of promoting and selling products or services” and “the area of study concerned with the promotion and selling of products and services.”  Marketing, Black’s Law Dictionary (7th ed. 1999).  The distinctions here are important as the term is subject to differing definitions that directly impact the reach of the statute.  For that reason, I find the term “marketing,” as used in the Agriculture Act of 2014, is ambiguous.  7 U.S.C. § 5940(b)(1).
In ascertaining the meaning of an ambiguous term in a statute, “we may use canons of construction, legislative history, and the statute's overall purpose to illuminate Congress's intent.”  Jonah R. v. Carmona, 446 F.3d 1000, 1005 (9th Cir. 2006).  The term “marketing” appears in the definition of “agricultural pilot program” which reads “agricultural pilot program means a pilot program to study the growth, cultivation or marketing of industrial hemp.”  7 U.S.C.  5940(b)(1).  Here, the overall purpose of the statute is to foster research in the market for industrial hemp.  It is a “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”  Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989).  Use of the terms “pilot program” and “study” as well as the statute’s title of “legitimacy of industrial hemp research” all suggest that the term “marketing” means the study of markets for industrial hemp, analogous to the more common phrases “market research” or “marketing research.”  See Merriam-Webster’s Collegiate Dictionary at 760.
I find that this interpretation of the term marketing is in keeping with the overall intent of the pilot program.  This is supported by the fact that Congress, at least partly in response to the federal enforcement agencies’ more restrictive (and similar) interpretation of the statute, adopts more expansive language in the subsequent appropriations acts, and specifically provides for the sale, transportation, and distribution of industrial hemp.  See, e.g., United States v. Fausto, 484 U.S. 439, 453 (1988)(changes adopted after a statute have passed, particularly those that give greater detail “necessarily assumes that the implications of a statute may be altered by the implications of a later statute.”).
Appellant raises these subsequent amendments to the appropriations acts of 2016, 2017, and 2018, as evidence that Congress intended to permit the sale and distribution of industrial hemp across state lines, and thus clarified that exempt industrial hemp is mailable.  See Consolidated Appropriations Act, 2018, Pub. L. No. 114-113, § 729, 132 Stat. 348, 388 (2018); Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, § 773, 131 Stat. 135, 182 (2017); Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 763, 129 Stat. 2242, 2285 (2015).  In its most recent amendment on the subject, section 729 of the Consolidated Appropriations Act, 2018, Congress states:
SEC. 729. None of the funds made available by this Act or any other Act may be used—
(1) in contravention of section 7606 of the Agricultural Act of 2014 (7 U.S.C. 5940); or
(2) to prohibit the transportation, processing, sale, or use of industrial hemp, or seeds of such plant, that is grown or cultivated in accordance with subsection section 7606 of the Agricultural Act of 2014, within or outside the State in which the industrial hemp is grown or cultivated.
132 Stat. at 388 (2018).  I agree with Appellant that the plain language of this section clearly permits the interstate sale of industrial hemp grown or cultivated under the provisions of 7 U.S.C. § 5940. 
However, provisions contained in appropriations bills are generally limited to the timeframe for which the appropriations bill is valid.  See 31 U.S.C. § 1301.  “The rule, then, is that Congress may create permanent, substantive law through an appropriations bill only if it is clear about its intentions. Put another way, Congress cannot rebut the presumption against permanence by sounding an uncertain trumpet.”  Atlantic Fish Spotters Ass'n v. Evans, 321 F.3d 220, 224 (1st Cir. 2003).  See also Natural Res. Def. Council v. United States Forest Serv., 421 F.3d 797, 806 n. 19 (9th Cir. 2005); Bldg. & Constr. Trades Dept., AFL–CIO v. Martin, 961 F.2d 269, 274 (D.C. Cir. 1992).  No language in the recent appropriations acts cited here convey any indices of permanence.
In this case, the most recent appropriations bill is for funds through the end of fiscal year 2018, which concludes on September 30, 2018. ⁷  I find it is more likely that Congress wanted to continue the pilot program and to encourage the sale and distribution of industrial hemp for a finite period as part of the research established by the Agriculture Act of 2014 into a potential industrial hemp market.  Based on its presence in multiple, consecutive appropriations legislation, I conclude that the more expansive language cited above applies only through the fiscal year in which it is present. 
I read Congress’s passage of this subsequent language as a recognition that the provisions of 7 U.S.C. § 5940 were not likely clear enough on the issues of sale, transportation, and distribution of industrial hemp product in its use of the term “marketing.”  In other words, Congress created a pilot program of limited distribution and limited marketplace, and then decided to expand that distribution beyond its original terms for a finite period of time.  Thus, while 7 U.S.C. § 5940 on its face does not permit the sale of industrial hemp product across state lines ­— except where that transportation was within a state participating in the pilot program, or, as suggested by the SOP, between states participating in the pilot program — the subsequent appropriations acts clearly permit a much more expansive definition of the legal exempt industrial hemp marketplace.
To summarize, the plain language of the Agriculture Act of 2014 suggests that Congress sought to permit an experiment into the growth, cultivation, and marketing of a product it now defined as industrial hemp.  7 U.S.C. § 5940.  And that it did so to determine whether a market exists for the product free from the restrictions of the CSA.  After finding the interpretation of the SOP drafted by certain federal agencies too restrictive, and out of concern that it could interfere with the experiment, Congress further refined the language to encourage the sale and distribution of industrial hemp within and between the various states for a more finite period, also free from the restrictions of the CSA and executive branch control.  Amicus Brief of Members of United States Congress in Support of Petitioners with Consent of all Parties at 25-26, Hemp Industries Ass’n, et al. v. Drug Enforcement Administration, et al. No. 17-70162 (January 11, 2018).  This explains the additional “clarifying” language adopted in the appropriations bills in fiscal years 2016, 2017, and 2018 that expand the experiment.  See Consolidated Appropriations Act, 2018, Pub. L. No. 114-113, § 729, 132 Stat. 348, 388 (2018); Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, § 773, 131 Stat. 135, 182 (2017); Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 763, 129 Stat. 2242, 2285 (2015).
While the pilot program under 7 U.S.C. § 5940 is intended to remain in effect for an indefinite period, the relaxing of restrictions for the sale, transportation, and distribution of industrial hemp products are of a more finite timeframe.  Certainly Congress could have adopted additional language under 7 U.S.C. § 5940 to include the sale and distribution of industrial hemp, thus making its changes permanent, but it chose not to do so.  Rather, it decided to use the annual appropriations process as its vehicle for these changes.  See, e.g., Norcross v. United States, 142 Ct. Cl. 763, 766 (1958)(“If it had been intended to apply permanently it would have been wholly unnecessary to repeat the rider from year to year.”); see also, Smithsfork Grazing Ass’n v. Salazar, 564 F.3d 1210, 1216 (10th Cir. 2009)(law repeated in successive appropriations acts not permanent).
In permitting this more widespread sale and distribution, Congress almost certainly understood that among the means of distribution would include the United States mail.  To put it another way, it seems doubtful that Congress intended transportation to include only private carriers.  Consolidated Appropriations Act, 2018, 132 Stat. 348, 388, §729(2).  Giving “transportation” its plain meaning, I find that it includes any method of transportation commonly used in the marketplace by business, which includes the United States mail. ⁸  Accordingly, as Congress currently permits the interstate sale, transportation, and distribution of exempt industrial hemp pursuant to the most recent appropriations act, I find that exempt industrial hemp and products derived from exempt industrial hemp are mailable.
The USPIS did raise the additional issue that the Postal Service receives no funding through appropriations acts of Congress.  It argues that this fact renders any provisions of appropriations acts inapplicable to the Postal Service.  They present no citations to any statute or case law that would support this proposition.  In the absence of any legal authority for that proposition, I find that the applicable sections of the appropriations acts cited herein have general applicability, and the federal law cited therein is applicable to the Postal Service.⁹
Finally, Appellant requested as a remedy — should it be successful in its appeal — that the package seized by the Postal Service be returned to it.  Since this result moots the question of whether industrial hemp is mailable to states in which the product is currently unlawful (because the shipment at issue will not be mailed to Utah as addressed), I choose not to address that issue in great detail here, but it seems some discussion is proper.
If the USPIS is arguing that the law of a state to which a product is shipped should determine its mailability, I decline to adopt that approach.  It is not practical to determine whether otherwise legal products under federal law are illegal under the laws of the various states and local governments.  If the Postal Service ships exempt industrial hemp products to states where there is neither a pilot program nor a statute that permits the sale or use of industrial hemp, enforcement of the local laws rests with the state or local enforcement authorities.  Under Postal Service regulations, the shipper is tasked with ensuring that its product complies with the laws of the various states to which it ships.  See United States Postal Service, Publication 52, Hazardous, Restricted, and Perishable Mail, § 453.2 (Nov. 2016).  Indeed, some states permit certain products while others do not, and the Postal Service correctly relies upon the shipper to understand the laws of the various local jurisdictions. Accordingly, having found that the exempt industrial hemp is mailable under Postal Service regulations, Appellant is entitled to judgment in its favor. ¹⁰ 
Appellant’s Motion for Summary Judgment is GRANTED. Respondent’s Motion for Summary Judgment is DENIED. ¹¹

ORDER

The appeal is GRANTED.  The contents of the mailpiece seized by the USPIS are mailable.

James G. Gilbert
Chief Administrative Law Judge