Naked City

On Sept. 17, lawyers for the Hemp Industries Association and the Drug Enforcement Administration appeared before a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco to present oral arguments regarding the DEA's attempt to ban food products containing hemp seeds and oil. Back in 2001, without publicly vetting their proposal -- likely a violation of established federal procedures -- the DEA announced a near-total ban on such products, arguing a prohibition was necessary because hemp seeds contain trace amounts of tetrahydrocannabinol, or THC, the active ingredient in marijuana. Since marijuana and THC are controlled narcotics under the Controlled Substances Act, the DEA opined, veggie burgers, cheese, and tortilla chips, for example, that contain hemp seeds or hemp-seed oil are also prohibited by the CSA.

But in fact, the Controlled Substances Act specifically exempts from regulation the "seeds, stalks, and fiber" taken from the marijuana plant, which includes industrial hemp, the narcotic's agricultural cousin. While this exemption appears to clear the way for legal sale of hemp-derived food items, that isn't the way the DEA reads it. During oral arguments before the 9th Circuit, DEA attorney Daniel Dormont told the justices that the law still contained a "loophole" that some enterprising miscreant could exploit. "[T]he loophole is this, you can take ... any plant material that contains any amount of THC, even in tiny amounts, and you can make an extract from that plant material," he said.

In short, Dormont argued that the possibility that someone could extract and distill the minuscule amounts of naturally occurring THC from industrial hemp seeds -- or from the food products that contain them -- poses a narcotic danger that outweighs the legitimate business interests of the manufacturers of foods that contain hemp seed and oil. The same logic, if you can call it that, would seem to also prohibit the manufacture or sale of nonedible hemp products, like soaps or textiles, but the DEA rule applies only to food products. Likewise, the same logic should prohibit the sale of foods containing poppy seeds, which contain higher trace concentrations of opiates (also Schedule I controlled substances) than the THC levels found in hemp seed. But poppy seeds are, of course, legal.

The logic didn't appear to sit too well with the 9th Circuit justices hearing the case: "The exemption [within the CSA] specifically speaks to that," said Judge Alex Kozinski. "It says marijuana is banned, but the seeds, stalks, and fiber are not, except resin extracted from them. So ... that's a difficult provision for you to get past, because it recognizes that Congress was aware," he continued. "It wasn't acting under the delusion that stalks and seeds don't contain any THC. But, nevertheless, they exempted it."

The court's decision isn't expected for another six months -- but the HIA is optimistic about the outcome. "Retailers and manufacturers of hemp foods should be confident that we will win this case," David Bronner, maker of Dr. Bronner's Magic Soaps and chair of the HIA's food-and-oil committee, said in a press release. (For more on the hemp food battle, see "Please Don't Eat the Hemp," April 11.)