Some of the latest substances the Drug Enforcement Administration wants to make illegal: cereal, soda, corn chips, muffins. Not all such products, of course, just those made with the seeds and oil of hemp, which in some forms can grow as marijuana. The DEA is concerned about traces of pot’s active chemical; fans of these products laud them as a nutritional godsend. A federal court in California must now decide which argument holds.
The DEA's campaign began last October, when it filed a new set of rules that would outlaw the sale of any food product made from hemp unless it was completely free from tetrahydrocannibinol, or THC, the active ingredient in marijuana.
Though marijuana is illegal, hemp products have been legal for years, and hemp foods make for a $5 million industry that says it is poised for major growth. Marijuana is the psychoactive variety of the hemp plant family, but many forms of hemp — including those used in products from energy bars to soap — contain little or no THC.
By contrast, hemp food’s nutritional benefits are widely touted, including its high levels of plant proteins, fatty acids and vitamin E.
In its Oct. 9 rules, the DEA argued that any hemp product containing even the tiniest amount of THC could fall under the definition of marijuana set out in the Controlled Substances Act of 1971. However, it argued, some hemp products could be considered exempt so long as they weren’t going to be ingested. Hemp rope and cloth, for example, would be fine; hemp seeds and baked goods would not.
In fact, the DEA argued, under the 1971 law these products would be considered just like marijuana: part of the Schedule I class of substances that show high potential for abuse, have no medical value and are almost always illegal.
To Kenex Inc., a hemp product manufacturer and seed exporter in Chatham, Ontario, the rule change would hobble its business. It joined with other hemp product manufacturers and sued the DEA last fall, winning an early victory in March when the 9th Circuit of the U.S. Court of Appeals suspended the DEA rule until the case was decided. Arguments are set for Monday.
'Adding a new substance'
The DEA seeks to ban hemp food products — cereal, butter, oil and the like. It argues any hemp product that contains even a trace amount of THC is illegal under the 1971 law, though it exempts industrial and skin care products.
That interpretation by the DEA was designed to resolve a shortcoming of the Controlled Substances Act, which originally exempted “oil or cake made from the seeds” as well as materials made from the “mature stalks ... or the sterilized seed,” yet prohibited anything “which contains any quantity” of THC.
The court battle will focus on the government’s interpretation of the law, which the industry sees as an expansion of the nation’s drug laws with neither legislative approval nor public feedback.
“We’re arguing they’re adding a new substance to the drug schedules,” said Joe Sandler, lead attorney in the industry’s suit. “This is no different than adding doughnuts or Popsicles to the Controlled Substances Act.”
Most hemp products fall under both categories of the law: They contain trace elements of THC, but they aren’t made from potent forms and they don’t make consumers high. The hemp industry says it’s devised guidelines that ensure not only against any ill health effect but also against a false positive on any drug tests.
Companies making hemp food have agreed to produce hemp oil with no more than 5 parts per million of THC in it; hemp seed used in other food products can have no more than 1.5 ppm. By contrast, marijuana usually contains between 3 and 6 percent THC —- some 10,000 times the acceptable levels in food.
For both sides, the suit represents a significant skirmish in what could be a protracted battle. The DEA has argued that the fight over industrial hemp is a gateway to the fight for legalized marijuana. Advocates believe the DEA plans to use the new rule as a wedge, “some sort of creeping regulation” that would eventually shut down the hemp industry, said David Bronner, president of Dr. Bronner’s Magic Soaps, a 50-year-old California company that makes hemp soaps and lotions.
“The DEA is being totally arbitrary and ridiculous,” said Bronner, who also chairs the food and oil committee of the Hemp Industries Association, a hemp trade group. “No one’s ever had any problem or been impaired in any way” by eating hemp food.
That is not to say, of course, that all hemp advocates insist on the presence of THC. Some food producers make hemp products with zero THC levels, and one industry organization, the Hemp Foods Association, advocates zero THC in all food products so consumers won’t “risk jail or loss of a career just by consuming healthy hempseed foods.” Others express concern that their fight will become entangled with advocates of legalized marijuana.
It isn’t entirely clear why the DEA is concerned about the THC levels in hemp foods, though one argument is that the chemical can build up in human fat cells over time, leading to eventual effects on those who eat hemp foods. But the October rule deals solely with legal arguments — except for a comment about whether traces in skin products can be absorbed. The DEA said it was “unaware of any scientific evidence definitively answering this question.”
There is scant evidence about the precise impact of the trace THC in hemp foods. But after hemp food consumers expressed concerns about how they might register in tests for drug use, several researchers completed a study showing that even extreme levels of hemp foods wouldn’t result in a false positive.
In the study’s worst-case assumption, a consumer could eat a hemp-heavy diet of 3,200 calories, with all proteins and all fats supplied by hemp. The maximum THC amount consumed would be 0.5 mg — one-tenth of the minimum dose needed for any psychoactive effect.
“Even for people who are extreme consumers of hemp foods, there is a very good margin of safety from any acute effects and also any long-term effects,” said Gero Leson, a scientist and consultant who co-authored the study, which was partially sponsored by the industry. “Even if one were to try to cover all your … fat and proteins needs from hemp seeds, you do not get anywhere near the levels necessary to cause health effects, psychoactivity or drug interference.”
None of this appears to have swayed the DEA, which would not discuss the case — as is customary with pending litigation. A spokeswoman suggested the agency’s arguments would echo those in the October rule.
Those rules frightened retailers enough that many pulled hemp foods off their shelves. One organic food chain, Whole Foods, reviewed its entire line of hemp food and nutrition products and pulled some until last month, when the DEA rule was suspended.
“We worked with our manufacturers and vendor partners to get a letter showing they were complying with the DEA directive before we would put their product on our shelves,” said Kate Lowery, a spokeswoman for Whole Foods.
The limitations aren’t yet a major economic blow, given the size of the industry, but advocates fear that the new rules would destroy any economic potential for industrial hemp. Moreover, they point out that the U.S. food industry, at nearly two-thirds of a trillion dollars a year, dwarfs other hemp-friendly industries such as paper and textiles.
At least five states have passed laws backing the production of industrial hemp as a potential crop, and at least 16 others have considered legislation — many arguing that what essentially grows as a weed could prove a valuable agricultural commodity.
The United States stands out in its zero-level THC policy. Some 25 countries allow the growth of non-psychoactive hemp. Many — including Germany and Canada — have set limits on the amount of trace THC in hemp crops.
Canada’s rules require a license to grow hemp and set a limit of 0.3 percent THC in hemp products, well above the levels sought by the U.S. hemp industry.
Because of those rules, Kenex has also sued the DEA under North American Free Trade Agreement provisions, claiming the disparity in standards imposes a sort of trade barrier. That case is still pending.