Please Don't Eat the Hemp

With a stay still in force from the U.S. 9th Circuit Court of Appeals, the Drug Enforcement Administration on March 21 did an end-run around the federal court and the nation's hemp industries , announcing a "final" rule banning the sale of foods containing hemp seed or oil. "In some cases ... [a] controlled substance may have a legitimate industrial use," reads the DEA's press release. The Controlled Substances Act "allows for industrial use of Schedule I controlled substances, but only under highly controlled circumstances." As such, the DEA has determined that body-care products containing hemp oils, such as soaps or lotions, are legal under the CSA -- only so long as they are not intended "for human consumption," the rule reads. According to the DEA, hemp food products -- such as ice creams, tortilla chips, and cooking oils -- are forbidden because they contain trace amounts of THC, the psychoactive ingredient in marijuana.

The DEA first floated this interpretation back in 2001, claiming that industrial hemp products should be subject to the same federal restrictions as marijuana itself -- without acknowledging that trace THC in hemp products does not get users high. The rule drew the ire of the Hemp Industries Association and other industrial hemp advocates, who sought and won a stay from the San Francisco-based 9th Circuit. The DEA was undeterred, floating a "proposed" rule identical to the "interpretive" rule the court had stayed. The agency has received nearly 150,000 public comments, most against the rule, but still, on March 21, published in the Federal Register the final ruling, putting a ban on hemp food products effective April 21. "It's really convoluted," said David Bronner, chair of the HIA's Food and Oil Committee. Bronner said the HIA has filed an "urgent" motion with the 9th Circuit to stay the new and allegedly final rule.

The hemp-products industry has grown to nearly $150 million a year, with hemp foods being its smallest but fastest-growing segment; hemp foods currently bring in around $6 million a year. The U.S. is the only large industrial nation that doesn't distinguish between marijuana as a drug and industrial forms of hemp, Bronner said; Canada, Japan, and China are among the countries with thriving hemp industries. "This is just a knee-jerk reaction to lump all cannabis together," he said. He added that the hemp food ruling may have a negative effect on other nonfood hemp businesses -- like his soap company, Dr. Bronner's Magic Soaps. Dr. Bronner's contains hemp oil as a basic component of its formula, and if hemp oils are defined as food and thus banned, his company will "have to reformulate with an inferior formula," he said. And therein lies a possible legal strategy for opposing the DEA; Bronner said his company expects to be a plaintiff under so-called "regulatory takings" laws, arguing that the government is capriciously redefining a once perfectly legal business. "We've gotten good response from the business establishment," he said. "There's kind of a solidarity there."

For more on the DEA's ruling, go to www.dea.gov/pubs/pressrel/pr032103a.html or www.votehemp.com.

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