US DEA Bans Hemp Foods...

[Guest guest]

This article is off of law.com I would post the link but it's like 3 lines

long.

 

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DEA Rule Bans Hemp Food Products

 

 

Michael Ravnitzky

The National Law Journal

December 3, 2001

 

 

On Feb. 6, it will be illegal to sell or import hemp-containing foods, under

a new rule of the U.S. Drug Enforcement Administration (DEA). The DEA says

it is interpreting and enforcing an existing rule, which doesn't require

formal rule-making procedures. But critics charge that the agency is

simultaneously soliciting comments for a new rule with the same wording and

effect. It published the rule in the Federal Register Oct. 9.

 

The foods are being banned for import or sale because they contain traces of

THC, the primary active constituent of marijuana. DEA Administrator Asa

Hutchinson has also said that " many Americans do not know that hemp and

marijuana are both parts of the same plant and that hemp cannot be produced

without producing marijuana, " according to a DEA statement.

 

Several hemp food products manufacturers and the Hemp Industry Association,

their trade group, have asked the 9th U.S. Circuit Court of Appeals for an

emergency stay of the enforcement of the rule. They also seek formal review

of the rule (66 Fed. Reg. 51530 et. seq.).

 

Federal appeals courts are the designated forum for challenging agency

rule-making actions. The DEA has given the manufacturers and retailers of

consumable hemp products until Feb. 6 to dispose of their inventory -- a

situation which they assert will ruin their businesses. They say that their

products are no more harmful than poppy seed bagels, which contain tiny

trace amounts of opiate compounds, or fruit juices, which contain traces of

alcohol.

 

Products on the market that the DEA says are affected by the action include

some beers, cheeses, coffees, corn chips, energy drinks, flours, ice creams,

snack bars, salad oils, sodas and veggie burgers. Manufacturers say that

there is no measurable THC content in these foods under tests available when

Congress passed the Controlled Substances Act. The suppliers say that hemp

is used in food products because the seeds are a high-quality source of

protein, and the hemp seed oil contains a variety of heart-healthy essential

fatty acids not found in other food products.

 

The DEA describes the rule as an interpretation of that statute and of DEA

regulations, which under the Administrative Procedures Act (APA), require no

formal rule-making procedures.

 

VERDICT BEFORE TRIAL?

 

" It's like the judge announcing the verdict before the trial, " says John H.

Young of Washington, D.C.'s Sandler Young, representing a group of U.S. and

Canadian companies making and selling hemp food products as petitioners with

his partner Joseph E. Sandler and solo practitioner Patrick Goggin as local

counsel. Sandler says that under the APA statute, the rule is clearly

substantive in nature, a categorization that requires a formal rule-making

hearing, or else notice to the public and an opportunity for comment.

Petitioners charge that the DEA is avoiding the proper regulatory procedures

by issuing the dual rule.

 

A DEA spokesperson declined to comment, deferring to the press advisory

statement posted at the DEA Web site, at www.dea.gov. The comment period for

the immediate proposed rule ends Dec. 10.

 

A 1998 seizure of hemp birdseed led to more than two years of extensive

interagency tussles, in which certain factions argued for conformity with

international trade standards on hemp, and other agencies insisted on a zero

threshold level.

 

In November 2000, DEA announced its plans to publish more restrictive rules.

Those rules, published Oct. 9, ban the sale or importation of hemp products

that " enter the human body " because the DEA says the products contain THC

traces. Sandler says Congress never intended to apply bans on hemp products

to microscopic traces detectable by modern analytical methods. He noted that

poppy seeds are exempted from the Controlled Substances Act even though they

contain trace opiates, and that fruit juice has trace amounts of natural

alcohol through fermentation but is not subject to liquor laws.

 

Apart from trying to stop imposition of the DEA rule, David C. Frankel, a

San Francisco attorney and Hemp Industries Association board member, said

the trade association members are " looking to work with DEA to set up

protocols that do not interfere with legitimate law enforcement without

forcing our products off the shelves. "

 

The Family Research Council, a Washington, D.C.-based conservative advocacy

organization, has submitted papers in support of the DEA rules. Robert

Maginnis, the council's vice president for policy, said that the hemp issue

is being used to camouflage a marijuana decriminalization legalization

agenda, and that there are ample substitutes for hemp products. Maginnis

says that legalization of hemp products sends a pro-drug message to

children.

 

On Nov. 8, Rose A. Briceno, and Wayne Raabe, senior trial attorneys with the

DOJ's Narcotic and Dangerous Drug Section, filed an opposition motion to the

request for an emergency stay. Petitioners filed a reply to the opposition

brief Nov. 15.