WEED WATCH: WHAT IS THE DEA SMOKING?

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.)