Feb. 16, 2005 – The US hemp industryâ€™s three-year battle with the US Drug Enforcement Administration (DEA) ended early this month when a federal court in San Francisco delivered a final blow to the government, ordered it to pay $21,265 in legal expenses to Dr. Bronnerâ€™s Magic Soaps. The California-based company has used hemp oil -- an extract from a plant similar to that which produces the drug marijuana -- in its soap products since 1998, and has largely financed a fight by the Hemp Industries Association (HIA) to overturn DEA efforts to ban the sale of foods containing hemp byproducts.
The ruling came about a year after the same court found that the DEA does not have jurisdiction to regulate products made from hemp, and it affirmed the hemp industryâ€™s argument that the position held by the DEA on hemp products was never justified. The ruling awarded reimbursement of partial legal fees under the Equal Access to Justice Act, which allows for awards to litigants when they prevail over the government when the governmentâ€™s position is deemed not to have been "substantially justified."
"Itâ€™s a sweet victory and certainly an embarrassment to the DEA," said David Bronner, president of Dr. Bronnerâ€™s Magic Soaps, in an interview with The NewStandard. "It proves that the DEAâ€™s attempt to ban hemp never had any legal merit."
Eric Steenstra, President of Vote Hemp, an advocacy body for the US hemp industry, said, "The court ruled that the DEA had overstepped its authority, and its decision reaffirms the legal status of hemp as a food ingredient."
The DEAâ€™s war on hemp began in 2001 when it claimed jurisdiction over hemp products under the controlled substance statutes.
The 9th Circuit ruled in February 2004 that the DEA had ignored Congressâ€™s exemption to the Controlled Substance Act (CSA), which specifically excludes hemp seed, fiber and oil from government regulation, and agreed with the HIA that hemp seeds contain just minor traces of THC (Tetrahydrocannabinol), the active ingredient in marijuana -- much like poppy seeds contain insignificant amounts of opiates.
"Nobody has ever been able to block the DEA in court from interpreting the law the way it wanted," said Adam Eidinger, Vote Hempâ€™s communications director. "The court decision was three-to-zero, and even the Reagan appointee on the court agreed with us. It was a reality check for the DEA."
The DEAâ€™s war on hemp began in 2001 when it claimed jurisdiction over hemp products under the controlled substance statutes. Because hemp contained THC, the DEA said it had the right to regulate hemp products. The move generated a large public outcry, and in 2002, 25 members of Congress wrote a letter to the DEA telling the agency that its interpretive rule attempting to ban edible hemp seed or oil products containing any THC was "overly restrictive."
Its battle with the DEA put tremendous strain on the hemp industry, which devoted resources, as well as time and energy, to the legal fight.
For its part, the HIA, a trade group representing the interests of hemp businesses and working to encourage research and development of new hemp products, fought back aggressively. It held two so-called "DEA Hemp Food Taste Tests," one in September 2001 and the other in April 2002, the day the DEAâ€™s rule on hemp was to take effect. The association gave away free hemp food products -- margarine, energy bars and pretzels, for example -- at DEA offices located in 65 US cities.
"I figured out a way to get a list of the DEA office locations nationwide," Bronner confided. "It wasnâ€™t easy because the locations are classified and the offices operate very secretively. We put a notice on the Internet and made many phone calls asking activists around the country to help us give away hemp food. Then we called the media and asked them to cover what we were doing. We were trying to show that hemp products should be legal. If the DEA wanted to arrest us, so be it. We got tremendous press coverage."
The DEAâ€™s arbitrary interpretation of the CSA, however, was shot down in federal court, first in March 2002, when the court granted a temporary restraining order over DEA action on its ruling, and then when the 9th Circuit granted a permanent injunction.
But the battle with the DEA put tremendous strain on the hemp industry, which devoted resources, as well as time and energy, to the legal fight. The HIA spent nearly $200,000 on the legal battle, Bronner revealed. "There was no guarantee of winning in court, and many stores began taking hemp products off the shelves, lest it appear that they were selling illegal drugs," he said. "Many companies in our industry faced the real possibly that they would go out of business."
"We wasted three years in court," added Johanna Schultz, the Albion, California-based public relations director of the Hemp Industries Association. "Itâ€™s time we could have spent growing our industry."
In making its case to ban hemp, the DEA claimed that the use of hemp products could cause a false positive reading on drug tests. Hemp activists maintain that companies in the hemp industry voluntarily observe reasonable THC limits similar to those observed by hemp businesses in Canada and European countries, and that these limits protect consumers with a wide margin of safety from workplace drug testing interference.
Manufacturers of hemp nut and oil products in North America also participate in a TestPledge program, hemp activists pointed out. Manufacturers pledge to hold the THC in hemp nut and oil at levels that render failing a drug test extremely unlikely, even when a person consumes large amounts of those products on a daily basis.
As for personal care products made with hemp seed oil, Eidinger said, "In recent years, a handful of people have alleged that they failed workplace drug tests because of using hemp oil products on the skin. Such allegations were routinely proven false, and there has yet to be a case in which someone was excused [from work] due to the use of hemp oil personal care products."
Additionally, the hemp industry trumpets the nutritional value of the plant, parts of which are high in protein, vitamins and essential fats.
On July 2, 2004, the US Court of Appeals for the Ninth Circuit denied the DEAâ€™s petition for a re-hearing of the case. The DEA had the option of appealing the decision to the US Supreme Court, but the allotted time for an appeal expired on September 28, 2004. "There is no turning back," Steenstra said. "The court decision is now the law of the land, which makes it difficult for the DEA to try a new tactic to ban hemp."
The hemp industry is excited about the future now that the DEA-generated cloud hanging over its head has been removed. "We can now focus on developing programs that educate consumers about hemp and work towards legalizing the production of industrial hemp in this country," Schultz said.
In a press release, the HIA noted: "The recently revived global hemp market is a tremendous commercial success. Unfortunately, due to drug war paranoia, the DEA confuses non-psychoactive industrial hemp varieties of cannabis with psychoactive varieties, and the US is the only major industrialized nation to prohibit the growing of industrialized hemp."
The HIA has been lobbying members of the House and Senate agricultural committees to change the situation and is working with Representative Ron Paul (R-Texas) to draft an industrial hemp bill. The HIAâ€™s goal is to see the bill introduced into the current congressional session. "We want American farmers to have the opportunity to grow industrial hemp without being harassed by the DEA," Eidinger said.
Dr. Bronnerâ€™s Magic Soaps will give some of the money it is awarded from the DEA to this legislative effort. The rest will be used to help finance industrial hemp studies in Canada. "A lot of big corporate players are interested in launching hemp products, but were reluctant to do so because of the DEA ruling," Bronner revealed. "The court ruling is going to really open up the hemp market."