THE WAR AGAINST HEMP
There’s no doubt about it: Jimmy Trapella loves his hemp. Hanging outside Newbury Street’s Hempest, Jimmy’s about to chomp into a hempseed bar. Earlier this morning, he enjoyed hempseed sprinkled on his bowl of breakfast cereal and had some hempseed nuts on a salad for lunch.
Jimmy owns a hemp wardrobe, too, including a belt, pants, bag, and shirt — most of which he’s currently wearing. And the 25-year-old is contemplating writing a song about hemp for his band. But despite his blissed-out devotion to the leafy green, Jimmy is not as chill as one might surmise. That’s because, depending on the outcome of an upcoming legal battle in the California courts, Jimmy’s afternoon snack could soon land him in prison.
“I’m bummed,” he says.
If you think hemp equals marijuana, you’re not alone. But in fact, the two plants are actually different varieties of the same species. One is grown to maximize fiber content, the other to maximize psychochemical effect. One is legal in brownies, the other isn’t. One was grown as a cash crop by our forebears, the other was not inhaled by a recent president.
But it seems even the US Drug Enforcement Administration (DEA) has difficultly differentiating between the two. In October, the DEA published an interpretive rule in the Federal Register banning hemp-food products containing any amount of tetrahydrocannabinol (THC), the psychoactive compound found in marijuana. The rule — which included an exemption for personal-care products like soap and shampoo and industrial products like paper, rope, and clothing — reinterpreted the 1970 Controlled Substances Act, which classified all drugs into five groups. The DEA’s rule also effectively rewrote a 60-year-old definition from the 1937 Marijuana Tax Act, which stated that “neither the mature stalk of the hemp plant nor the fiber produced therefrom contains any drug, narcotic, or harmful property whatsoever.”
“Given the recent increase in marketing of these so-called ‘hemp’ products in the United States,” reads the rule, written by DEA administrator Asa Hutchinson, “and given that many such products have recently been determined to contain THC, DEA has repeatedly been asked in recent months whether the THC content of such products renders them controlled substances despite the fact that they are reportedly made from portions of the cannabis plant that are excluded from the definition of marijuana.”
The agency’s decision: yes. As a result, all hemp intended for consumption that contains any amount of THC has suddenly been classified as a Schedule I substance — which means that, according to the DEA’s new regulation, Jimmy’s afternoon snack is basically the same thing as smoking a joint, shooting smack, or dropping a tab. Hemp pretzels, nutrition bars, pancake mix, salad dressing, beer — all illegal. The new rule gave store owners a 120-day window to remove hemp-food products from their shelves.
Many in the industry cried foul. Led by the Hemp Industries Association (HIA), a trade organization representing more than 250 companies and small businesses, seven manufacturers banded together and filed a request for a formal review of the rule in the Ninth Circuit Court of Appeals. “[The DEA’s rules] were arbitrary, they didn’t follow due process, and they weren’t based on due process,” argues John Roulac, founder of Nutiva, which manufactures hemp and flax bars, among other hemp products. “What we’re doing is perfectly legal, healthy, sustainable.” The review, which begins April 8 in San Francisco, could effectively reverse the DEA’s rule. In addition, Canadian company Kenex has accused the US government of violating the North American Free Trade Agreement (NAFTA) by impeding the import of hemp seeds. In March, the company filed notice of an intent to arbitrate under NAFTA’s Chapter 11, requesting tens of millions of dollars in compensation for lost revenues.
In the meantime, the group of hemp supporters filed an urgent motion to stay the DEA’s rule, which would allow stores to continue to stock their hemp-food products. “This action seriously threatens our business,” the motion reads, “to the point that we may need to shut down our operations and force us to go out of business.” In early March, the Ninth Circuit granted the stay, meaning that until the court finishes its review of the rule and renders its final decision, it’s still legal to sell — and consume — hemp-food products.
Michael Cutler, a drug-policy-reform advocate and an attorney for the Voluntary Committee of Lawyers, sees the stay as substantial indication that the feds’ case has little merit. “I don’t think the government’s even close to having a case,” he says. “The fact that a circuit court would step on a government agency, particularly the DEA, is extraordinary. And to do it as an emergency-injunctive action, with only affidavits, and without evidence,” is even more extraordinary.
Humans have made use of hemp plants for 10,000 years. In fact, its devotees are fond of throwing historical information at the government, such as the claim that both George Washington and Thomas Jefferson grew hemp. And they tirelessly point out that while marijuana and hemp are both classified as Cannabis sativa, the first is bred for maximum THC content, and the second is bred for maximum fiber content.
Industrial hemp plants, a tall, stalk-like variety, are bred for exceptionally low THC content, and can be harvested either for their seeds (also known as nuts) or their oil. The seed’s outer shell contains trace amounts of THC, which may brush against the nut, but the psychochemical component can be removed with dabs of alcohol or the whisk of a brush, says Richard Rose, founder of hempseed-food maker HempNut Inc. After it’s been extracted, the seed can be turned into anything from crunchy nuts and pretzels to salad oil. And according to the HIA, the small nuts are gaining steam: estimated retail sales for hemp-food and body-care products in the US exceeded $25 million in 2000, up from less than $1 million in the early ’90s.
Sure enough, at the Hempest outlet in Northampton, about a dozen people come in every day to enjoy a cup of hempseed coffee. Ed Dodge, a member of the Massachusetts Green Party and a hemp aficionado, says he also eats hemp daily. He mentions the Galaxy Restaurant in New York. “They have a whole hemp-food menu. Twenty different hempseed dishes. They’ve got the best veggie burger I’ve eaten in my entire life!”
Enthusiasts also tout the hempseed’s health benefits, derived from an optimal mix of essential fatty acids omega-3 and omega-6 (those found in fish and wheat germ, for example), as well as its high protein content. Alternative-health expert Andrew Weil, author of the Self Healing newsletter, is a fan of hemp-food products, writing that “hemp oil contains more essential fatty acids than flax and actually tastes good. It is nutty and free from the objectionable undertones of flax oil. I use it on salads, baked potatoes, and other foods.”
Cynthia Sass, a nutritionist referred by the American Dietetic Association and a professor at the University of South Florida, adds that “hempseed also is a good source of vitamin E. It’s real high in protein. Hemp is equivalent to soy beans in its protein content, which is really good.” Still, she cautions that while the seed and oil have a good “nutritional profile,” there aren’t any studies that indicate whether or not the vitamin E, protein, and essential fatty acids actually offer health benefits when ingested via the plant. “There hasn’t been any research done in which doctors gave people hemp and then followed them to see whether their blood pressure or something else improved. So there’s no connection between consumption and health benefits. Even though it has some positive nutrients in it, we need to look for some more research and continue to consume other nutrients. There’s no one super food that everyone needs to be eating.”
Strong as the hemp-food market may be, it’s not the high-powered arm of the hemp industry. Apparently, one can fashion more than 25,000 products out of the stuff, including hammocks, magazines, hacky sacks, frisbees, embroidery thread, candles, coffee filters, teddy bears, and, of course, lots and lots of elastic-waisted, loose-fitting hemp clothes.
As the law currently stands, all that remains legal even if the DEA’s rule isn’t overturned. But industry insiders are nervous that they may be headed down a slippery slope. First food, then lip balm, then body lotion, they fear — and then the whole shebang. So companies other than those that manufacture hemp food have gotten involved. “The DEA is just picking on the food industry now,” says Roulac. “[But] the body-care industry is next.”
Some surmise the DEA has bolstered its case against hemp because ingested hemp oil can cause a false-positive result on drug tests. In 1997, the Journal of Analytical Toxicology published a study showing that a person who ingested 135 milliliters of hempseed oil twice a day for four days tested positive for marijuana in the blood. In January 2000, the Air Force banned the oil after a soldier tested positive for drug use — and traced it back to a hempseed dietary supplement. It may be that government officials fear drug users could blame a positive drug-test result on hempseed oil or other hemp product, rather than on an illegal substance.
But in October 2000, the Division of Forensic Toxicology at the Armed Forces Institute of Pathology found that “the concentration of THC in hemp-oil products has been reduced considerably since the publication of earlier studies.” After volunteers ingested the products, the report’s authors claimed, “all volunteers were below positive screen and confirmation cutoffs within 48 hours after cessation of ingestion.”
Subsequent studies have also thrown the false-positive fears out the window. Most recently, an environmental-consulting firm in Berkeley, California, found that THC concentrations from foods containing seeds or oil are “sufficiently low to prevent confirmed positives.”
Testing aside, the question for the DEA may be why now? With a war going on, doesn’t the government have better things to worry about?
“The US government has had a war against the hemp industry for a long time; this is just another round,” explains Nutiva’s Roulac. “They realized that everyone was distracted with domestic security, they could do things like this without much public notice,” asserts Don Wirthshafter, founder of the Ohio Hempery, a hemp-product manufacturer. “The same week, they came down on medical-marijuana clubs in California and physician-assisted suicide in Oregon. They thought they could get away with it then.”
More important, those in the hemp industry believe, the fact that the government sat on the issue for a year indicates that the products don’t pose the critical health threat the DEA posits. “Obviously, having waited almost a year to issues these rules,” court papers read, “DEA does not believe the products in question pose any threat to public health or safety, let alone an imminent threat warranting immediate placement of these products on Schedule I of the [Controlled Substances Act].”
So if it’s not a health issue, what’s the problem? Some allege that the DEA has been pressured into action by the religious right. The conservative Family Research Council (FRC) issued an extensive appeal to snuff out the hemp industry in December 2000. In an article titled “Hemp Is Marijuana: Should Farmers Grow It?”, Robert Maginnis, vice-president for national security and foreign affairs at the FRC, wrote, “legalizing hemp sends the wrong message about its look-alike, marijuana.... Selling hemp products is clearly about marijuana legalization.”
David Bronner disagrees. And as chair of the HIA’s food-and-oil committee and president of Dr. Bronner’s Magic Soaps, a personal-care company whose products contain hemp and whose packaging (also made of hemp) features religious messages, Bronner sits at an intriguing intersection of hemp advocacy and Christian morals. “Industrial hemp has a phenomenal nutritional profile,” he says. “The DEA is trying to undercut the most promising growth market in the near future.”
But none of the DEA documents addresses the crux of the case: can you get high from eating hemp-food products? The level of THC in hempseed is reportedly so low that, as one hemp advocate huffs, “the products don’t have a high enough concentration of THC to intoxicate an ant, let alone a human being.”
Says attorney Michael Cutler, “You can eat hemp pretzels till you explode, and you won’t get high. It ain’t there. You can’t stack it up and get it in there. What you have in there cannot be metabolized into something that’s psychoactive. There’s really no scientific dispute about that.”
Nutritionist Sass concurs: “I haven’t seen any research to show that the psychoactive effects of using marijuana plants as a drug would have the same effects as eating [hemp foods]. I’ve never had anyone tell me they would eat it for that reason. Everyone I’ve ever talked to who is or who has considered eating hemp is doing it because they think it’s healthy.” Sass pauses, laughing. “And I work at a university.”
Canada’s Hempola even tried an experiment to see whether eating enough hemp-food products could possibly turn a test positive. In the test, the country’s top-ranking masters triathlete ingested hempseed oil at six times the typical consumption rate for a series of days. “He went in for a drug test,” explains Hempola’s founder and president Greg Herriott, “and he came out negative.”
It’s been illegal to grow hemp in the US since the 1950s, so most hempseed found in this country is imported from Canada and follows that country’s strict Health Canada Protocol guidelines: a plant must contain no more than three-tenths of one percent THC, or five parts per million (ppm) for hemp oil and 1.5 ppm for shelled hempseeds.
Here in the US, the DEA claims that hemp foods containing zero percent THC are perfectly legal under the new rule. But insiders argue that’s impossible, because hemp products with zero percent THC don’t exist. According to them, you can always find trace amounts if you look hard enough. But companies currently selling hemp-food products have tested below the current THC-detection standards, which are set by the Canadian government.
In fact, Richard Rose has pitted his HempNut Inc., based in Santa Rosa, California, against its competitors and cozied up to the DEA by claiming its products actually do contain zero percent THC. “Cleaning THC off of hemp seed is easy, doable,” he says. “Just clean off the THC.” But even Rose worries that appealing the DEA’s ruling could pave the way for renegotiating testing standards, which could allow the DEA to lower the bar to, say, five parts per billion. “This ban was a get-out-of-jail-free card for 90 percent of the industry,” he says.
Others in the hemp industry associated with HIA aren’t pleased with Rose’s public swagger. In retaliation, they tested his products for THC, lowering the bar just a wee bit. “HempNut has trace THC in there, and we found it using marginally stronger detection protocols,” says the HIA’s Bronner. And that illustrates the industry’s ultimate point: “It’s absolutely impossible to get all the THC off the seed,” Bronner says. “You can spend an arbitrary amount of money to clean [the seeds], but it’s only going to go out so many zeros. You’re always going to have some. You’ll always be able to see it if you look far enough down.”
Zero percent THC, almost zero percent — what’s the biggie? It’s a big deal when you consider that in between zero and teensy amounts of the stuff is where the DEA has found a window to prosecute. It doesn’t matter that you can’t get high from trace amounts of THC; the fact that the chemical is in there at all has allowed the agency to classify the food product as a toxic substance.
Bronner’s concerned that Rose’s naysaying may invalidate the industry’s primary legal recourse. “We have to stand and fight now. Everyone in the industry realizes that except for this one company.”
Whatever the court’s decision — which is expected to come down within six to nine months — the hemp-food industry has already taken a hit. Somewhere in the midst of all the legalese, the slew of articles in papers across the country, and the HIA’s urgent appeals for action, consumers are confused, the industry is splintering, and small businesses are hurting.
Natural-food chain Whole Foods (known locally as Bread & Circus) removed all hemp-food products from its shelves in February, for example, when its suppliers were unable to produce documentation that their products were completely THC-free. In mid March, after the stay was granted, the chain restocked the items.
As a result of actions like these, hemp companies are reporting plummeting sales. “My sales are down 75 to 80 percent across the country,” says HempNut’s Rose. “I’ve been managing phone calls from Topeka, Kansas, saying, ‘Where do I send these hemp foods? They’re illegal. I don’t want the DEA to come in and raid me!’ They’re actually afraid. They’re whipped into a tizzy.” Adds Hempola’s Herriott, “Consumers are fearful of purchasing hemp-food products, especially if they’re obligated to have drug testing at work.”
But some other companies are reporting an uptick from the unexpected publicity. “We’ve picked up some new customers,” says Nutiva’s Roulac. “Some of our current retailers are seeing a rush from consumers to pick it up.”
Rose, however, claims any and all damage is irreparable. “Once you destroy the industry, it doesn’t matter what the DEA does. People misreading the rule have created the very thing the DEA was trying to do.”
Adds Ohio Hempery’s Wirthshafter, “It’s discouraging to me because the government, just by threatening this a year ago, cut out our market. These companies got scared away from hemp. This may come back in a year or so, when we finish these court battles, but it was a real setback for my business and my industry.”
But hemp appreciators aren’t giving up any time soon: they’ll fight to the end for their super herb. “Hemp’s one of those things, once you get involved in it, it’s like jumping into a black hole,” says Nutiva’s Roulac. “The government is very intimidated by hemp. It is their mission to destroy the entire hemp industry. But the genie has already jumped out of the bottle. The more they try to stop it, the more ridiculous they look.
Written by: Nina Willdorf
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