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Ninth Circuit Court Agrees With Position of Hemp Food Pioneer Richard Rose, Not "Vote Hemp/HIA"

Congratulations to Vote Hemp and our old fiends the Hemp Industries Association (the HIA, my "alma mater"), for the recent ruling by the Ninth Circuit Court of Appeals in San Francisco (another "alma mater": SF, not the 9th Circuit). In VH/HIA's recent lawsuit against the DEA, VH/HIA sued to actually stop DEA's legalization of hemp imports not for human consumption, or about 95% of all hemp imports. They spent $200,000 to sue on three issues: 1) natural THC on hemp products is not illegal; 2) a science-based THC level was requested; and 3) that DEA was not interpreting existing law, but rather was making new law. They lost on all three, but put a positive "spin" on the ruling anyway, then started asking for donations for their "victory."

On 6 February, 2004, the Ninth Circuit (long known as the most liberal and most over-turned federal court in the country) ruled that the DEA had no jurisdiction over hempseed foods. Even DEA said as much: "[Hemp foods] need not be exempted from control under this interim rule, since they are, by definition, non-controlled."

Rarely do DEA and I agree on anything, but this is exactly what I told Vote Hemp/HIA when they first talked about suing DEA, an exercise full of sound and fury, signifying nothing. And it's the same message I've argued for years: properly made hempseed foods contain no THC (as defined by US Customs testing methods), and thus are exempt from DEA regulations, no different than any other non-THC-containing product such as tires or corn or wood.

As the largest importer and marketer of hemp foods at the time, and the one with the most to lose, here's what I originally said about the DEA Rule: "By clarifying what is necessary to achieve DEA-exempt legal status for hemp as food, DEA has removed a significant legal barrier for importers. It is expected that this clarification will ease the confusion for all parties involved in importing hempseed." Click here to see proof.

In pioneering the Hemp Foods movement the last ten years (and doing the same with soy and vegan foods for 24 years), acceptance really is one bite at a time. People realize how good hemp is to them as well as for them.

And now we know it will also be one ruling at a time. With almost 4 years from DEA proposal to Ninth Circuit ruling, we still have a very long way to go. Acceptance by FDA, US Customs, USDA, a variety of departments at the state and local level, the press which loves hemp's wink-wink, nudge-nudge story, people subject to drug testing, the military and law enforcement who banned hemp foods because of drug testing, consumers who are concerned about food quality and safety, product liability insurers, contract packagers handling the product, and finally the notoriously conservative food distribution and retail industry.

But HempNut, Inc. is living proof that a Best Practices company, a professional food firm with a "zero-THC" Quality Standard, free from DEA control, is actually possible and in fact is preferable to killing off the industry in order to play "gotcha" with the DEA just to generate donations for Vote Hemp. While our competitors are now finally agreeing that their hempseed foods can be made to be "zero THC," being an existing professional food company we recognized the critical importance of this issue for the future of hempseed foods not just recently, but way back in 1994. Click to here to see proof of our zero-THC statement in October, 1994.

And click here to see that the leading hempseed experts all say the same thing: "Hempseed can be cleaned free of THC."

Using the square peg of science on the round hole of politics costs much in legal fees, and is rarely anything but a failure as this latest publicity stunt proves. The continued restrictive scheduling of Cannabis in the US is but the most glaring example: if science could actually rule politics, marijuana and vaporizers would have been available in every liquor store in the land years ago. But instead doctors and the sick and dying are locked up like criminals by the same cynicism that makes untrained street police replace physicians when it comes to medicine, and calls it science. Advocacy science is the bending of science to meet the goals of the advocate, and both are a little less for it. The Cannabis plant doesn't need, nor deserve, this kind of approach. It can hardly be considered a victory for a plant that deserves so much more, and needs so much less.

Regardless of what the government does, if the wholesale and retail trade refuses to be subjected to the hazards of selling hemp foods in a litigious society with Billion-dollar stakes, not to mention the person's career and future. Game over, DEA won. For example, of all the tens of thousands of products it stocks, one national natural foods chain requires the following only of hemp companies, and it is similar to what is required from other retail chains and distributors, FYI, HempNut, Inc. was the first hemp food company able to meet these requirements and be an approved vendor with approved products, but this protocol shows how serious our trade customers take the issue:

Consumable Hemp Product Protocol

As you know, the U.S Drug Enforcement Agency (DEA) has recently issued a clarification of current law that limits and in some cases prohibits the sale of products containing tetrahydrocannabinol (THC), if these products are intended for consumption by humans. [Name of Chain] requires your cooperation to determine whether your products meet the DEA's requirements.

FAILURE TO RESPOND TO THIS REQUEST WILL AUTOMATICALLY RESULT IN YOUR PRODUCTS BEING REMOVED FROM ALL [Name of Chain] STORES AND YOUR PRODUCTS BEING REMOVED FROM OUR APPROVED PURCHASE LIST.

This protocol applies only to hemp products intended to be eaten by humans (i.e. items for topical application or that are worn are not included). Your company must respond to this protocol by January 15th or [Name of Chain] will remove your products from our stores on February 1st and notify you that you are no longer approved as a vendor to [Name of Chain]. If [Name of Chain] must take this action, [Name of Chain] will also bill your company for the product removed and labor incurred, and deduct any such amounts from amounts due to your company.

If your product contains any edible hemp product or derivative (i.e. oil or seed), you must provide the following:

1. Documentation that your product has been tested and certified that THC is not detectable. This certification must be issued by a laboratory which is in compliance with all applicable federal and state laws and regulations with respect to the use of Schedule 1 controlled substances for analytical testing, including the Controlled Substances Act and the regulations of United States Drug Enforcement Administration. If your product has been tested by a laboratory in Canada, the "not detectable" certification must be issued by a laboratory which is in compliance with the laws, regulations, and requirements of Health Canada, including those provided in Industrial Hemp Technical Manual, which is issued by Health Canada. You must also enclose documentation which establishes the laboratory's compliance with Health Canada's legal requirements for analytical testing of industrial hemp.

2. A signed affidavit, in the form of Exhibit A attached to this policy, guaranteeing that each batch of finished product will be certified as meeting the "none detectable" standard as described above.

3. A written indemnity, in the form attached as Exhibit B to this policy, that you will hold harmless and defend [Name of Chain]. from any loss, cost, liability or expense resulting from any inaccurate or false certifications or violation of this policy and that [Name of Chain] will be reimbursed by the manufacturer for all related expenses.

4. No product containing detectable levels of THC shall be shipped to [Name of Chain] or any of its distributors or retail locations after January 5th, 2002.

Vote Hemp/HIA issued a press release with many happy quotes, including some from companies not actually affected by the DEA's Proposed Rule. But what counts most is what Whole Foods, Wild Oats, Vitamin Cottage, Kroger, Trader Joe's, and Safeway say about the ruling.

However it all shakes out, one thing is for certain: If there is no market for hemp foods, then there is no market for hemp grown in America. No market for hemp grown in America, then no legalization of low-THC industrial hemp is needed in America, and the law stays unchanged. It matters not what the laws of DEA are, the laws that matter most in this scenario are the laws of economics.

Many of us have invested millions of dollars from our own pockets, years of blood, sweat and tears, and put our futures on the line in order to build a market for hemp foods. Like a beautiful wood building that takes 1,000 people 100 years to build, all it takes is a child playing with matches to burn it to the ground in a few minutes. Little skill is required kill the hemp foods market, but 100 times more energy will be needed to re-build it again to where it was when it was stopped in its tracks: poised to make the jump off the precipice into the chasm of consumer acceptance, regulatory approval, and market value driver for the future of hemp in America. I hope there's enough money in the Vote Hemp budget for it.

I'm truly flattered that so many folks appreciate our vision for a hemp foods future, inspiring some to even start a new hemp food company. Since we were one of the first successful ones and had many more years of experience (24 years) making and selling natural foods, many, like Nutiva, Fresh Hemp/Manitoba Harvest, Galaxy Global Eatery, Alpsnack and others, copied our products, business models, marketing materials, charts, terminology and names, our graphics and our text copy, our trademarks, trade dress and copyrights, our domains and urls, and Nutiva even hired our CEO, despite California law against it.

But they haven't been able to copy the most important asset: the integrity and transparency requisite to be a sustainable food company. This includes honest, ethical communications with the public and media, but especially quietly protecting the families, livelihood and freedom of our customers who must submit to drug testing, regardless of our strong personal feelings about that racist, abhorrent and invasive practice. In so doing we also protect the stores selling our products from legal exposure, and take away the government's only possible reason to stop hemp foods.

We had the vision to make our products THC-free years before anyone even cared about the issue. We had integrity to not allow a customer to fail a drug test because of our products, years before it became an issue. And we had the integrity to speak out truthfully about the negligible impact of the new DEA Rule, and about the industry's ready ability to comply. These stands have made us unpopular with the alarmists who fan the flames of the current "tempest in a teapot" over the DEA Rule. But we are less concerned about our popularity with them than we are in our integrity with our own conscience and values.

And now as hemp food sales plummet in distributors and stores across America thanks to the negative publicity, the alarmists have accomplished what DEA never could: cripple the market for hemp foods. With less distribution and fewer outlets to sell them, the critical mass for keeping hemp foods alive in America dwindles. If sales fall much more, hemp foods may be a web-based sales phenomenon only.

As far as Richard Rose (Hemp Food Association and HempNut) are concerned, the DEA Rule was nothing more than a technical clarification of the basis under which we, DEA, US Customs,and all responsible hempseed importers have been operating under for quite some time. Namely, that hempseed products may not contain tetrahydrocannabinol (THC), a highly-restricted Schedule I Controlled Substance illegal under the Controlled Substances Act of 1970, which is an unapproved food additive as well as a product quality liability and therefore litigation risk, and could ruin lives and families if a consumer unwittingly consumed it. It might also render the food a "medical device" by the FDA, for delivering THC, no matter how small. (THC itself has been called "one of mankind's safest therapeutic substances" by DEA Administrative Law Judge Young, of which I concur and have seen the results of firsthand. It has not been implicated in even one death. That's ever.)

But I believe that if one were to have a non-paranoid reading of the actual wording of the Rule, one would likely agree with my interpretation of it, as many reasonable minds have. Especially if one were to keep in mind that we know full well that "zero THC" actually means "less than 1ppm THC," the cut-off in the US Customs' THC testing protocol, which is the only agency to have an opportunity to examine all hemp and hempseed products, since all hemp must be imported. And when reading the Rule, remember too that every communication from DEA since it proposed the Rule four years ago has been the same, from the Director to the Spokesman: they are trying to de-regulate hemp products, and are concerned solely with hemp for human consumption since hemp foods have been accused (mostly falsely) of drug test intereference. Namely, many people have tested positive for marijuana, and blamed hemp foods. If anyone were in their shoes, they might do the same.

Click here to read DEA's position.

Click here to read the DEA Rule as it appears in the Federal Register, and read it for yourself.

HempNut, Inc. is exempt from the Rule, as we have no THC in our products. All our products are legal for sale throughout the USA, Canada, and Europe. Despite being the oldest and largest importer of hempseed products, we have never even once had any problem from US Customs, DEA, FDA, or any other agency, except Canadian (the real embargoers of hemp products). Why? Likely because we do things their way: by the book. Consumers, retailers and distributors have absolutely no fear of arrest or seizure of HempNut, Inc. products. DEA Director Hutchinson and DEA Spokesman Glaspy have made it very clear: this is a very low priority for them, and no one is (or has been in recent years) in danger of arrest.

Notably, for the past 5 years we've been telling anyone who cared to listen that hempseed foods can easily and cheaply be cleaned to have no detectable THC, or "zero THC," in an attempt to encourage the newer companies to do the same. Click here to see our release dated 8 Feb 1999 on usenet, accessed via Google.

DEA has made it very clear that this is only a ban on THC in hempseed foods, not a ban on hempseed foods. So what is the reason for this new interest by the DEA in hempseed products? Over the past few years many hundreds of people failed a drug test and wrongly blamed hempseed products, hoping to be excused. While one can understand such desperation to avoid jail or losing a job, the drug testing industry became quite alarmed at what they termed the "drug test interference" defense raised by these folks and their lawyers. So DEA responded by banning THC in hempseed products.

Why have responsible hempseed companies made "zero THC" products a priority? Simply because it makes for good customer service. No customer should have to risk jail or loss of a career just by consuming healthy hempseed foods, so removing all THC is important to responsible hempseed product marketers.

The hempseed products industry has the technology to provide "zero THC" hempseed and hempseed-based products. Improving processing standards to meet challenges in today's market is the only way to ensure the long-term viability and sustainability of the hempseed products industry. Responsible hempseed importers have met this challenge.

This issue highlights the need for federal deregulation of drug-free industrial hemp. It is an issue of states' rights, and makes good business sense for farmers. Industrial hemp is not a drug and the government therefore does not have a compelling interest in regulating industrial hemp.

An effective way to support the fledgling hemp industry is by "voting with your dollars." Encourage others to seek out and buy these highly nutritious hempseed products. Tell friends and family about them. Encourage their use. This is the greatest power consumers and citizens have, to vote with their dollars as well as their ballots. Many believe that the greatest market potential for hemp lies in the hempseed, and that the greater the demand is for industrial hemp, the greater the pressure will be to re-permit domestic cultivation. The DEA has pointed to the small size of the market and industry as justification for its Rule.

And once the hempseed products market becomes larger, it will become sustainable, and its very existence will be the greatest proof possible that hemp is commercially viable, necessary, and should be legally cultivated again. This large and growing market for hempseed products will create the greatest pressure to deregulate industrial hemp in the U.S., galvanizing farmers, media, consumers, retailers, distributors, and manufacturers. But getting the industry there from where it is today will likely be the greatest challenge it faces, greater even than the DEA.

In the Ruling, DEA has gone out of their way to clarify the issue, which is also the same position I arrived at from understanding DEA's intent, the significance of the precedent-setting "get out of jail free card" for 95% of the hemp industry, US Customs' 1ppm THC standard, and a fair reading of the Rule history, regarding foods which have lab tests proving "zero THC" (aka 1ppm). Read what DEA says about it:

"What Is the Legal Status of "Hemp'' Products That Contain No THC? Any portion of the cannabis plant, or any product made therefrom, or any product that is marketed as a 'hemp' product, that is both excluded from the definition of marijuana and contains no THC (nor any other controlled substance) is not a controlled substance. Accordingly, such substances need not be exempted from control under this interim rule, since they are, by definition, non-controlled."

Text by Richard Rose, his opinion and only his opinion. If you don't like it go out and get one of your own!