The hemp industry has won a three-year battle with the Drug Enforcement Administration (DEA) over the agency's effort to ban foods containing hemp products, and now the industry wants the feds to say they're sorry. The 9th US Circuit Court of Appeals ruled February 6 that the DEA overstepped the bounds of the law when, in contradiction to the plain language of the Controlled Substances Act, it attempted to ban foods containing trace elements of THC, the psychoactive component of cannabis.
And based on official documents obtained by the Hemp Industry Association's VoteHemp project (http://www.votehemp.com), the industry is charging that the Justice Department knew all along it didn't have a legal leg to stand on, but that it plotted the commerce-sabotaging move as part of its culture war against marijuana.
The court held that while the DEA does have regulatory authority over marijuana and synthetic THC, that authority does not extend to the "non-marijuana" parts of cannabis plants. The Controlled Substances Act explicitly exempts stalks, seeds, and fiber from regulation under the act. "The DEA cannot regulate naturally-occurring THC not contained within or derived from marijuana -- i.e., non-psychoactive hemp is not included in Schedule I," wrote federal Judge Betty Fletcher for a three-judge panel. "The DEA has no authority to regulate drugs that are not scheduled, and it has not followed procedures required to schedule a substance. The DEA's definition of THC contravenes the unambiguously expressed intent of Congress in the CSA and cannot be upheld."
"The decision in HIA v. DEA is a huge boost to the hemp food market, and we expect to see many more hemp food products on store shelves," said David Bronner, maker of the AlpSnack organic hemp nutrition bar and chair of the HIA Food and Oil Committee. "The three-judge panel agreed with our main argument that the DEA's 'Final Rule' ignores Congress's specific exemption in the Controlled Substances Act under the definition of marijuana that excludes hemp seed and oil from control along with hemp fiber. Based on today's decision, the court reasonably views trace insignificant amounts of THC in hemp seed in the same way as it sees trace amounts of opiates in poppy seeds," Bronner said.
Unless the Justice Department appeals the decision to the Supreme Court -- it has not yet made any announcement -- or seeks to move against hemp foods through other means, possibly using the Food and Drug Administration, the ruling marks an end to a legal battle that began in October 2001, when the DEA issued an "interpretative rule" banning the sale of hemp products for human consumption because they contained traces of THC. The DEA and its Justice Department attorneys argued that people might get high from hemp food and that hemp foods could affect drug testing, but those contentions were ill-founded and almost literally laughed out of court, first by the 9th Circuit in June 2003, when it invalidated the "interpretive rule," and again last week, when the court threw out the DEA's "final rule."
While industry figures hailed the ruling, the fight cost the HIA at least $200,000 in legal expenses and damaged the nascent industry as some retailers pulled hemp food products from their shelves. And with recently uncovered official documents in hand, the industry is crying foul. "The public and media should question the motives of the DEA," said Eric Steenstra, president of Vote Hemp. "We have uncovered documents through the Freedom of Information Act that prove the DEA's own attorneys at the Department of Justice as far back as March 2000 knew they lacked the authority to ban hemp food products. The DEA owes over 200 companies and every American an apology for wasting taxpayer money pursuing a ban on hemp foods."
Steenstra was referring to a March 22, 2002, letter from John Roth, chief of the Narcotic and Dangerous Drug Division of the Justice Department's Criminal Division. In that letter responding to a request for a legal opinion from then Customs Commissioner Raymond Kelly, Roth reviewed the history of court decisions relating to the issue and after noting differences between the treatment of marijuana and hemp, concluded: "With hemp, by contrast, Congress has made its intent known by specifically excluding these products from its definition of marijuana. While the department's overall policy toward the cultivation of cannabis for hemp purposes is currently undergoing review by the Attorney General, it is our legal opinion that we presently lack the authority to prohibit the importation of hemp products..."
But wait, there's more. Two years earlier, in another letter obtained by Vote Hemp, then Office of National Drug Control Policy general counsel Ed Jurith was plotting efforts to ban hemp foods because, as he put it, "hemp-hype has become a stalking horse for the marijuana movement." Allowing the importation and sale of hemp consumables "threatens the viability of our federal drug testing system and supports a movement to cultivate cannabis sativa in this country," Jurith warned head Customs lawyer Alfonso Robles. Such an outcome would be "unacceptable," wrote Jurith, suggesting that an "interpretation of the plain language of Schedule I of the Controlled Substances Act" might serve to block such evil.
But Jurith's interpretation, or one of its bureaucratic descendants, is what died in federal court in San Francisco last week. And with it died what can only be called a conspiracy impelled by the imperatives of drug war absolutism to disrupt and bankrupt a legal, healthful industry. "The truth is that the DEA, at the direction of the Office of National Drug Control Policy and the urging of the Family Research Council, attempted to kill the legitimate, burgeoning hemp foods industry not because hemp is harmful to the human body, but because they see it as a 'stalking horse' for the marijuana movement," said Patrick Goggin, an attorney for the HIA, who warned of possible legal action against the government. "The damages this egregious policy have caused are widespread to say the least. The industry is fully considering its options for recovering these damages and the cost of defending against this underhanded governmental action."
While the hemp industry celebrates its victory, it also seeks to punish governmental wrongdoers. And it's looking over its shoulders to see what, if anything, the feds throw at it next. "We are prepared for an appeal," declared HIA publicist Adam Eidinger. "An appeal would help us, it would be more mud on the DEA's reputation and more publicity for us."
Read the US 9th Circuit Court
decision in HIA vs. USA online at:
Read the Roth letter online
Read the Jurith letter online