A federal appeals court in San Francisco on Friday rejected a government effort to ban the sale of bread, protein powders and other food products made from hemp, the psychoactively benign botanical cousin of marijuana.
The decision by the U.S. 9th Circuit Court of Appeals undercuts a dogged attempt to halt domestic consumption of hemp launched by the Drug Enforcement Administration in October 2001.
Although it opened the door for unfettered sale of hemp foods, Friday's court decision left unresolved the bigger battle over the federal government's prohibition on domestic agricultural production of hemp, which can be used for everything from paper production to car parts. Currently, hemp products and foods are produced from seed, oil or fiber imported from other countries, such as Canada, where harvest is not prohibited.
Unlike smoked cannabis, hemp contains only trace amounts of tetrahydrocannabinol, or THC, the chemical that produces the intoxicating high sought by pot users. But drug enforcement officials have long argued against hemp farming out of concern that the plant could be mistaken for its close relative, marijuana. A commercial hemp farm could provide cover for illegal pot production, some drug enforcement officials have argued -- a contention hemp advocates dispute.
The 9th Circuit ruled that the DEA maintains regulatory authority over smoked marijuana and synthetically derived THC, but not over food that contains hemp. The court concluded that it is impossible to get high from products that contain only tiny amounts of THC.
Officials at the DEA and Justice Department declined to comment on the ruling by a three-judge panel of the 9th Circuit. Charles Miller, a Justice Department spokesman, said government attorneys want to conduct a more thorough review before deciding whether to appeal.
Entrepreneurs in the hemp industry heralded rejection of the ban, which for a time appeared to have put their fledgling businesses in jeopardy.
"I'm jazzed. It's a great day for the Constitution," said John Roulac, founder and president of Nutiva, a Sebastopol, Calif., firm that makes hemp protein powder. "We can focus on building one of the fastest-growing natural food industries versus trying to skirmish with the DEA."
"Nobody is getting high from any of this," said Eric Steenstra, president of VoteHemp.com, a nonprofit advocacy group for the hemp industry. "It's just not happening."
Steenstra expressed hope that the ruling would not only reignite the hemp food industry, but also nudge efforts to legalize agricultural production anew in the United States.
Buoyed by imported seed and fiber, the hemp industry has managed to grow from nothing to more than $200 million in the last few decades. Hemp advocates herald its potential use in making paper, clothing, rope and other products. Its oil is used for a variety of body-care products such as lotion, soap and cosmetics. Foods include energy bars, waffles, milk-free cheese, veggie burgers and bread.
After the DEA restrictions were announced, hemp products were pulled from shelves at health-food stores and supermarkets across the nation. Manufacturers saw sales slump. The Hemp Industries Assn., which represents about 250 companies, immediately challenged the ban in federal court.
The industry won several early skirmishes, but federal drug enforcement officials continued to push for a strict hemp prohibition, putting a damper on the industry's growth. Some manufacturers delayed making forays into new product lines, and a few stores refused to restock hemp foods out of concern the DEA might prevail.
Lynn Gordon, president of French Meadow Bakery, a firm in Minneapolis that produces a top-selling hemp bread, said Friday's decision meant she would finally go ahead with the national marketing of several new bakery products she had shelved while the court fight raged.
"It's a great day for all of us who believe that the little hemp seed is a mighty wonder crop," Gordon said. "I'm thrilled, but there is so much more to do."
Gordon said the cost of importing hemp seed and oil from Canada could be slashed if a local grower could produce those commodities for her, but DEA regulations continue to prohibit any hemp harvest in the United States.
Once used to make ropes and sails for ships that brought settlers to the new world, hemp was grown in America in the early 1600s. By the 19th century it was the nation's third-largest agricultural commodity. California farmers cultivated hemp into the 1930s.
But during the Depression years a federal crackdown against marijuana had the concurrent effect of undercutting pot's genetic cousin.