After three years of legal defeats, the Drug Enforcement Administration (DEA) has quietly given up its effort to ban the sale and consumption of hemp food products in the US. A final deadline for the Justice Department to appeal a February ruling against the DEA by the 9th US Circuit Court of Appeals to the Supreme Court passed Monday, and the US hemp industry is declaring victory.
"The mandate of the 9th Circuit is final and their decision will now be the law of the land," said Joseph Sandler, lead attorney for the Hemp Industries Association (HIA), lead plaintiff in the long-running litigation.
The federal non-action marks the end of a concerted effort by the DEA beginning in 2001 to undo the growth of the hemp food industry by claiming jurisdiction over hemp products under the Controlled Substances Act (CSA). According to the DEA, because hemp food products contain trace elements of THC, the main psychoactive ingredient in marijuana, the agency had the right to ban such foods. But the DEA's idiosyncratic reading of the act was slapped down repeatedly by federal judges, first with a temporary restraining order, then with a permanent injunction issued by the 9th Circuit.
"This is a huge victory for the hemp industry," said David Bronner, chair of the HIA's Food and Oil Committee and scion of Dr. Bronner's Magic Soaps, as well as president of the company Gertrude & Bronner's Magic Alpsnack, a natural and organic nutrition bar that uses hemp as one ingredient. "The Bush administration decision not to appeal the 9th Circuit's decision from earlier this year means the three-year-old legal battle over hemp seed products is finally over. The three-judge panel in the 9th Circuit unanimously ruled that the DEA ignored the specific Congressional exemption in the CSA that excludes hemp fiber, seed and oil from control along with poppy seeds. The court viewed as insignificant and irrelevant harmless trace amounts of THC in hemp seed, just like harmless trace amounts of opiates in poppy seeds."
While the industry basked in the glow of victory, some expressed anger at the waste of time and money -- both the industry's and the taxpayers' -- in the legal battle over such dangerous products as hemp waffles." The industry should have been focused on marketplace promotion and consumer education rather than flushing over $200,000 down the drain battling pointless DEA hysteria," said Eric Steenstra, executive director of Vote Hemp (http://www.votehemp.org), a nonprofit group devoted to expanded the market for the plant.
The prolonged legal struggle has led to both negatives and positives for the hemp industry, said Alexis Baden-Mayer, Vote Hemp director of governmental relations. "A lot of resources that would have gone into developing new products went instead to the legal fight, and the industry had to live with great anxiety. It was not at all clear that we would be able to overturn the DEA rule, and in the beginning it looked like hemp foods would be taken off the shelves or that industry members would be prosecuted over hemp oil or hemp seeds," she said. "In fact, some products were actually removed from store shelves because the DEA sent warning letters to retailers about looming implementation of their proposed rule."
But because of an aggressive legal strategy by the Hemp Industries Association, the rule never actually went into effect, Baden-Mayer noted. "We won on the first motion to stay implementation of the rule in late 2001, and we were able to get the food back on the shelves. It wasn't as bad for the industry as it could have been because the legal strategy has been successful from the beginning," she said.
But if the battle caused some hiccups for the hemp industry, the DEA's effort also had unintended consequences. "The DEA ended up with a lot of bad press over this, while the hemp industry got a lot of free publicity," Baden-Mayer argued. "Only the DEA could get hemp foods on the front page of the Washington Post. The positive effects of hemp foods became more widely known at a time when there is an emerging market of health-conscious consumers. People are using hemp foods not because they're groovy products banned by the DEA but because they recognize the benefits of omega-3 essential fatty acids."
Now it is on to the next battle: legalizing the production of industrial hemp in the US. "We're lobbying all the members of the House and Senate agriculture committees and we're looking for someone to sponsor an industrial hemp bill," said Baden-Mayer. "Our goal is to get federal industrial hemp legislation introduced in the next session," she said. "But it is going to require a strong grassroots effort in places like Kentucky and Illinois and Iowa and the Dakotas, places where support for industrial hemp is already strong."
Still, a federal hemp bill faces obstacles -- namely the baleful influence of the DEA, said Baden-Mayer. "It is relatively easy to get hemp bills passed at the state level because there is support from farmers and business interests, but those bills mean little because the need for a federal license stops hemp farming from ever happening. And the ability of the DEA to control the dialogue on hemp on the Hill means it is really difficult for us to convince Congress that hemp is different from marijuana. We have an uphill battle in winning federal legislation," she said.
But Baden-Mayer remained optimistic. "We were on the defensive with the DEA, but now we're on the offensive," she said. "Hemp is every bit as miraculous as the hippies thought when they first discovered it. There are over a million cars in North America that have hemp in their door panels. The market for hemp products continues to expand. The future is bright."