"If the people let the government decide what foods they eat and what medicines they take, their bodies will soon be in as sorry a state as are the souls of those who live under tyranny."
On Oct. 9, the U.S. Drug Enforcement Administration issued a clarification of the Controlled Substances Act of 1972 stating that hemp foods containing any detectable levels of THC, the psychoactive chemical found in marijuana, will henceforth be considered illegal drugs. Marijuana is listed as a Schedule 1 controlled substance, and the interpretive rule under which the DEA is now operating puts hemp foods containing even trace amounts of THC in this same category. The DEA gave retailers 120 days—until Feb. 9—to remove all such products from shelves.
The move has generated a firestorm of controversy among natural foods producers and consumers. The mainstream media has added to the controversy by misreporting the DEA action as a ban on all hemp foods. This, in turn, has caused lost business for manufacturers because many retailers and distributors think all hemp foods must be removed from store shelves. The DEA move has also given rise to several legal challenges by industry groups and members.
For example, the Occidental, Calif.-based Hemp Industries Association, a group of natural products manufacturers, has challenged the DEA's interpretation in court. David Bronner, president of Dr. Bronner's Magic Soaps of Escondido, Calif., is spearheading this effort. The group is challenging the DEA's ruling before the Ninth Circuit U.S. Court of Appeals.
"According to what [the DEA is] saying, any hemp food that contains 'any THC' is going to be banned," said Bronner. "But they didn't define what 'any THC' means."
Bronner said that manufacturers make an effort to source hemp seed and oil with undetectable levels of THC under official Health Canada protocol. Generally, that level is in the range of 10 parts per million, making it impossible for any consumer to achieve a psychoactive effect from hemp products. But, he said, "The DEA can at any time come out with an arbitrarily sensitive protocol. They will find infinitesimal amounts, because there is no such thing as zero in nature."
Bronner describes the DEA's action as "arbitrary, capricious and malicious," and argues that Congress never intended the Controlled Substances Act to be used as a mechanism to halt the import of hemp seed and oil. "We feel it's plain as day that hemp seed is exempted from the definition of controlled substances exactly as poppy seeds are," he said.
Bronner points to the language of that act, which seems to back his claim. While opium poppies are illegal, the seeds—which do indeed contain trace amounts of opiates—are exempted. Likewise, the seeds and oil of the hemp plant are exempted under 21 U.S.C. 802 16, which reads: "The term 'marijuana' means all parts of the plant Cannabis sativa L. ... Such term does not include the ... oil ... made from the seeds of such plant ... or the sterilized seed of such plant, which is incapable of germination."
Even within the government, the DEA action is seen by some to contradict existing law. After the DEA seized hemp seeds at the Canadian border in 1999, John Roth, chief of the narcotic and dangerous drug section of the Department of Justice, sent a memo to both U.S. Customs and the DEA. In it he wrote, "[H]emp products intended for human consumption have THC at levels too low to trigger a psychoactive effect and are not purchased, sold or marketed with the intent of having a psychoactive effect ... we are not able to regulate or prohibit the importation of 'hemp' products based on any residual or trace content of naturally occurring THC. ... Congress has made its intent known by specifically excluding these products from its definition of 'marijuana.'"
But the DEA doesn't see it that way. According to Will Glaspy, a DEA spokesman who has been widely quoted on the issue, "THC is a controlled substance; it is a drug, so foods containing controlled substances would be illegal. The decision didn't change anything, it just clarified a misunderstanding. If a product had THC before Oct. 9, it was illegal then."
Indeed, some in the industry have expected the DEA's action. The new rule makes official what has been unofficial policy since at least August 1999, when the DEA seized shipments of sterilized hemp seed produced by Kenex Ltd. of Ontario at the Canadian border. [See "DEA Stops Hemp Trade Cold," NFM, November 1999.] The seed, bound for hemp foods manufacturer Nutiva Inc. of Sebastopol, Calif., contained 14 parts per million THC. The DEA said at the time that it had a zero-tolerance policy regarding THC.
Kenex has now brought a formal complaint before the U.S. State Department, arguing that the DEA's Oct. 9 rule is a violation of the NAFTA treaty's provisions, and amounts to unfair harassment of hemp providers.
Todd Weiler, NAFTA legal consultant for Kenex, believes the DEA has overstepped its bounds in issuing the rule. "They're telling us what they think the law means," Weiler said. "[But] the existing U.S. laws allow the importing of these products."
Jean Laprise, president of Kenex, argues that the DEA doesn't have the authority to override U.S. laws allowing hemp product importation. "The DEA has tried to manipulate public opinion," he said. "They're trying to change U.S. laws, and that is a form of interfering with trade."
But not everyone in the hemp foods industry is surprised and outraged by the DEA's actions. Richard Rose, president of HempNut of Santa Rosa, Calif., and founder of the Hemp Foods Association, doesn't see the DEA's action as a big deal.
"It's not about THC, it's not about hemp, it's not about hemp foods," he said. "It's about the fact that you're not supposed to have a controlled substance in food and put it in people's bodies. That is one of the biggest 'duhs' of the year. It was obvious to me years ago, and for that reason we started working diligently seven years ago to make foods that have zero THC in them."
Rose said that it's not difficult to remove THC from the seed: "It's just another processing step." And he doesn't see any darker motive behind the DEA's ruling. "It's not different than saying there can't be aflatoxin in peanuts," he said. "It's just another government regulation foisted on industry."
His view is echoed by the DEA's Glaspy, who told the Tucson Citizen: "I think there is a lot of misinformation out there, that we are trying to ban all hemp products. That is not the case. I think a lot of people have overreacted to this."
In fact, Rose thinks that the hemp industry reaction to the rule has done more harm than good, giving many consumers and retailers the impression that all hemp foods are now illegal. "If they'd let this rule quietly go into effect, we could have quietly gone on with our business," he said. "Instead, it's a three-ring circus. Folks have mischaracterized the DEA rule, and now we have a market that's just dying. Retailers are sending things back, distributors are not listing things. Wild Oats and Whole Foods almost pulled all hemp foods. There's all this unfounded hysteria and mischaracterization. The idea that the DEA has banned hemp foods is just not true."
Rose said the misinformation has devastated HempNut's sales, a fact he finds ironic given that his company already sources zero-THC hemp seed and oil, and has never had any trouble from the DEA in regard to importing raw materials or its final products. He thinks the DEA's primary motivation is to make sure people can't use hemp foods as an excuse for failing drug tests, which are extremely sensitive to marijuana. Although it's unlikely that someone could consume enough hemp foods to test positive, Rose said it's not impossible.
Since the rule was issued, Rose has helped other companies source zero-THC ingredients and spent time explaining to retailers that his products are not in violation of the new rule. Regarding the Hemp Industry Association's challenge to the DEA, he said, "I think it's a very misguided effort by well-intentioned people—but the road to hell is paved with good intentions."
Mitchell Clute is a poet, musician and freelance writer based in Louisville, Colo.
Natural Foods Merchandiser volume XXIII/number 3/p. 18, 20