Dispute over Hemp Food Imports (1999-2004)
Starting in late 1999, DEA acted administratively to demand that the U.S. Customs Service enforce a zero-tolerance standard for the THC content of all forms of imported hemp—and hemp foods in particular. Development of DEA’s rules to support its actions sparked a fierce battle over the permissibility of imported hemp-based food products that lasted from 1999 until 2004.
DEA followed up, in October 2001, with publication of an interpretive rule in the Federal Register explaining the basis of its zero-tolerance standard.80 It held that when Congress wrote the statutory definition of marijuana in 1937, it “exempted certain portions of the Cannabis plant from the definition of marijuana based on the assumption (now refuted) that such portions of the plant contain none of the psychoactive component now known as THC.”
In March 2003, DEA issued two final rules addressing the legal status of hemp products derived from the cannabis plant. It found that hemp products “often contain the hallucinogenic substance tetrahydrocannabinols (THC) … the primary psychoactive chemical found in the cannabis (marijuana) plant.”81 Although DEA acknowledged that “in some cases, a Schedule I controlled substance may have a legitimate industrial use,” such use would be allowed only under highly
controlled circumstances. These rules set forth what products may contain “hemp” and also prohibit “cannabis products containing THC that are intended or used for human consumption (foods and beverages).”
Both the proposed rule (which was published concurrently with the interpretive rule) and the final 2003 rule gave retailers of hemp foods a date after which DEA could seize all such products remaining on shelves. On both rules, hemp trade associations requested and received court-ordered stays blocking enforcement of that provision. DEA’s interpretation made hemp with any THC content subject to enforcement as a controlled substance.
Hemp industry trade groups, retailers, and a major Canadian exporter filed suit against DEA, arguing that congressional intent was to exempt plant parts containing naturally occurring THC at non-psychoactive levels, the same way it exempts poppy seeds containing trace amounts of naturally occurring opiates.82 Industry groups maintain that (1) naturally occurring THC in the leaves and flowers of cannabis varieties grown for fiber and food is already at below-psychoactive levels (compared with drug varieties); (2) the parts used for food purposes (seeds and oil) contain even less; and (3) after processing, the THC content is at or close to zero. U.S. and Canadian hemp seed and food manufacturers have in place a voluntary program for certifying low, industry-determined standards in hemp-containing foods. Background information on the TestPledge Program is available at http://www.TestPledge.com. The intent of the program is to assure that consumption of hemp foods will not interfere with workplace drug testing programs or produce undesirable mental or physical health effects.
On February 6, 2004, the U.S. Court of Appeals for the Ninth Circuit permanently enjoined the enforcement of the final rule.83 The court stated that “DEA’s definition of ‘THC’ contravenes the unambiguously expressed intent of Congress in the CSA and cannot be upheld.”84 In late September 2004 the Bush Administration let the final deadline pass without filing an appeal.
2013 DEA Guidance Outlined in “Cole Memo”
In August 2013, the Department of Justice (DOJ) updated its federal marijuana enforcement policy following 2012 state ballot initiatives in Washington and Colorado that “legalized, under state law, the possession of small amounts of marijuana and provide for the regulation of marijuana production, processing, and sale.”85 The guidance—commonly referred to as the “Cole memo”—outlines DOJ’s policy, clarifying that “marijuana remains an illegal drug under the Controlled Substances Act and that federal prosecutors will continue to aggressively enforce this statute.” DOJ identified eight enforcement areas that federal prosecutors should prioritize:
- Preventing the distribution of marijuana to minors,
- Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels,
- Preventing the diversion of marijuana from states where it is legal under state law in some form to other states,
- Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity,
- Preventing violence and the use of firearms in the cultivation and distribution of marijuana,
- Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use,
- Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands, and
- Preventing marijuana possession or use on federal property.
Although the Cole memo does not specifically address industrial hemp, because DOJ regards all varieties of the cannabis plant as “marijuana” and does not distinguish between low- and high-THC varieties, the August 2013 guidance appears to cover industrial hemp production as well. Accordingly, some are interpreting the guidance as allowing states to proceed to implement their laws regulating and authorizing the cultivation of hemp.86
Changes to Colorado’s state laws in November 2012 now allow for industrial hemp cultivation. Industrial hemp was reported as being grown in Colorado in 2013.87 However, growers and state authorities continue to face a number of challenges implementing Colorado’s law, including sampling, registration and inspection, seed availability and sourcing, disposition of non-complying plants, and law enforcement concerns, as well as production issues such as hemp agronomics, costly equipment, and limited manufacturing capacity, among other grower and processor concerns.88 There is also general uncertainty about how federal authorities will respond to production in states where state laws allow cultivation.
In November 2012, state authorities in Colorado requested clarification from DOJ about how federal enforcement authorities might respond to its newly enacted laws and forthcoming regulations.89 Since federal law regards all varieties of the cannabis plant as “marijuana,” many continue to regard DOJ’s August 2013 guidance as also likely applicable to the regulation of industrial hemp.90 In November 2013, Colorado officials requested further clarification regarding the cultivation of industrial hemp specifically.91 It is not known whether either federal agency has responded to the state’s requests.
In September 2013, Representative Blumenauer sent a letter to Oregon state officials urging them to implement that state’s hemp laws.92 In response, DOJ officials in Oregon reiterated that since “‘industrial hemp’ is marijuana, under the CSA, these eight enforcement priorities apply to hemp just as they do for all forms of cannabis” and that “federal prosecutors will remain aggressive” when it comes to protecting these eight priorities.93 They further indicated that they do not intend to interfere with their state’s hemp production so long as it is well-regulated and subject to enforcement.94 Some regard that correspondence as further indicative of how federal authorities might respond to production in states that permit growing and cultivating hemp.95