Fritz Schranck wants to know what I think about a Ninth Circuit decision overturning, at least for now, an attempt by the Drug Enforcement Administration to ban hemp food products (even birdseed containing sterilized hemp seeds would be forbidden).
Fritz thinks the rule itself is “uncommonly silly.” Just to keep you guessing, though, he also thinks that Judge Kozinski’s dissent from the ruling overturning the ban, on grounds of mootness, probably has it right.
I don’t agree that the DEA was being “silly,” which is not the same as saying I think that banning hemp food products would be good policy or good law.
I also find it infinitely frustrating that anyone, in the face of the real drug problems we face, and the real problems created by drug enforcement excesses, spends a minute or a dollar arguing about this bushwah. But the argument is happening, and I’ve been asked for an opinion, so here it is:
The hemp plant, cannabis sativa, has drug-bearing leaves and flowering tops, but it also has both fiber usable for cordage, paper, or cloth and edible seeds that can be pressed into an edible oil.
The plant itself is illegal to grow here, but some other countries allow it. The drug-bearing parts are illegal everywhere, but up until now it has been legal to import fiber or sterilized seed or products made from them.
Some years ago a man named Jack Herer wrote a book called The Emperor Has No Clothes, which spins an Elders-of-Zion-level fantasy about how cannabis prohibition was a plot by the wood-pulp industry to destroy a competitor for paper and of DuPont to destroy a competitor for nylon, and a typical New Age pipe dream about how using hemp for fiber, fuel, and food will improve your health and save the planet. The book is really a disgusting piece of trash, but it obviously meets some deep psychological needs, and it’s been adopted as the Bible by a population known as “hempsters,” whose insistence that their campaign for hemp has nothing to do with the drug issue is made somewhat harder to believe by the fact that whenever you meet one he turns out to be stoned.
The hempsters are happy to pay insane prices for hemp-fiber t-shirts and hemp-oil shampoo, but attempts to broaden the market further have gone nowhere. In sober fact, hemp rope has been obsolete since the invention of nylon and hemp paper and cloth are quite nice but much too expensive to compete. (It’s conceivable that hemp might be a useful source of biomass from which to make methane, but even if it were it wouldn’t be a significant element in the biomass supply.)
The latest round, though, has nothing to do with fiber or fuel; it’s all about food. The seed and oil contain trace amounts — levels too low to cause any intoxication — of THC, the major psychoactive component of marijuana and hashish. The hempsters have been trying to popularize “hemp energy bars.” That’s the move the DEA is trying to frustrate, by a regulation that would make anything containing any measurable amount of THC illegal, and a parallel regulation specifically banning seed and oil. It’s the seed-and-oil regulation that the court struck down, for complicated reasons having to do with statutory interpretation and the Administrative Procedures Act. Kozinski’s dissent doesn’t touch the substance, but points out that if the any-THC regulation is upheld (that appeal is still pending) then the status of the other one is moot.
So why would anyone care about whether people are allowed to consume non-intoxicating hemp food products? One answer is that the DEA is against it for the same reason the hempsters are for it: it’s all part of the symbolic warfare about cannabis policy. That, presumably, is what Fritz thinks is uncommonly silly.
But there’s another issue here. Since the products contain traces of THC, having eaten them would serve as a convenient excuse for testing positive for cannabis in a drug test. Apparently that’s not a real issue at a technical level; you just couldn’t eat enough to actually trigger a positive result. But it’s still one more issue that drug testers would have to contend with; even if the excuse doesn’t work, lots of people might be persuaded that it would work, and thus think they could drug-test-proof themselves by just laying in a supply of hemp energy bars.
So I think DEA was acting to protect drug testing, which may be a bad idea — I rather think it is, in the workplace setting, with respect to cannabis — but isn’t silly.