Many question whether (a) a domestically cultivated industrial hemp crop, (b) from which CBD is extracted and packaged, (c) all occurring within the state of New York State, falls under the FDA's jurisdiction over “interstate commerce”. The short answer is Yes.
The power to regulate commerce between and among the states a/k/a ‘interstate commerce' is specifically granted under the Constitution to the United States Congress. The US Supreme Court has ruled repeatedly that even such local activity, that never leaves one's backyard, is still subject to federal regulation due to its impact on ‘interstate commerce'.
In order to appreciate the expansive reach of Congress and federal agencies like the FDA, the seminal case of Wickard v. Filburn (317 U.S. 111 (1942)) must be revisited as the United States Supreme Court obtusely set forth the nature of interstate commerce activity and the seemingly endless reach of Congressional power even over activities that all occur within a single state.
Factual Background of Wickard v. Filburn
The case arose of out legislative action taken in 1938 to stave off a national crisis where the vast overproduction of wheat was causing the market plummet. Supply was exponentially exceeding demand with every bushel harvested driving the price down that much farther. This market glut caused a financial crisis for farmers who by necessity had to continue to increase their harvest yield in order to still meet their economic burdens even in the face of a rapidly deflating market.
In response, Congress, through the Agricultural Adjustment Act of 1938, sought to take federal action to correct the downward slide and stabilize the markets. In essence, the Act sought to federally regulate all wheat production by effectively imposing harvest quotas so that the supply would be dramatically reduced in order to create greater demand and price stabilization in the wheat market. Any farmer who produced more than his allotted amount as subject to a fine and other legal action.
Roscoe Filburn was an Ohio wheat farmer who abided by the production limits. But, he also grew wheat for his own consumption and for feeding his livestock so that he would not have to purchase the product from the marketplace. As such, his personal cultivation defeated the federal Act because Filburn was not causing a demand on the market. As a result, Filburn was fined for violating the Act. Filburn challenged both his fine and the constitutionality of the federal law arguing that Congress had exceeded its jurisdiction because he purchased, planted, and harvested his wheat all within the state of Ohio. He never intended that the surplus crop, grown for feeding his livestock, to leave his backyard. As such, Filburn posited that his purely local activity did not implicate commerce between any two states and therefore did not constitute ‘interstate commerce' which would otherwise invoke federal jurisdiction over his home grow operation.
To the Supreme Court, Filburn's consumption of his personal crop meant that (1) he was not only bypassing the federal production quotas, but (2) that his failure to purchase the livestock wheat from the market place meant that he was undermining Congress' intent to reduce wheat production and create artificial demand on markets. As such, the Supreme Court believed Filburn's super-localized action had a theoretical negative ripple effect of defeating the stabilization of the national marketplace.
Nearly 62 years later, the Supreme Court would again come to the same conclusion when dealing with a medical marijuana patient who was authorized under state law to cultivate his own plants. In 2005 they took the case of Gonzalez v. Raich, where a Californian farmer, who, in accordance with California's Compassionate Use Act, was growing medical cannabis for his personal consumption. Despite being state legal to do so, his home grow operation was found to be violating federal law. While Gonzalez made arguments akin to those of Filburn, the Supreme Court disregarded any issues about the fact that California's medical law was in contravention of the federal CSA, and instead reemphasized that federal jurisdiction reached state lawful personal cannabis cultivation that was never intended to leave the patient's home.
Drawing upon Wickard, the Supreme Court found that federal jurisdiction existed because the purely intrastate non-commercial activity of the cultivator/medical patient grown for personal consumption COULD theoretically end up in the illegal marketplace were it to be sold which was otherwise prohibited by the Schedule I status of marijuana under the Controlled Substances Act.
Gonzalez v. Raich – SCOTUS FINDS SUPREMACY AND FEDERALISM
Supreme Court held in Gonzales v. Raich held that because of the Commerce and Supremacy Clauses, the federal government could regulate and prosecute purely intrastate activities related to medical marijuana. 545 U.S. 1, 27-28, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) Rationale draws upon the “dormant commerce” clause and precedent of Wickard v. Filburn wheat production case.
“To the extent Congress' opinion on the subject differs from California's, “[t]he Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail.” Raich, 125 S.Ct. at 2211-2212.
“Congress expressly found that the drug has no acceptable medical uses” Raich, 125 S.Ct. at 2211.
“We acknowledge that evidence proffered by respondents in this case regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed in Schedule I.”
Raich, 545 U.S. 1, 28 n. 37, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) [Emphasis Added].
The Raich decision makes clear that Wickard v. Filburn is here to stay and the reach of Congress and federal agencies that enforce or promulgate rules and laws in accordance with Congressional legislation have near limitless reach provided that the targeted activity in some way may impact upon a real or imagined marketplace, even if only tangentially.