Victory for Hemp II

Jacob Sullum | February 6, 2004

Today the U.S. Court of Appeals for the 9th Circuit once again rebuked the Drug Enforcement Administration for its bizarre, lawless attempt to ban foods made from nonpsychoactive hemp seed. Noting that the Controlled Substances Act (CSA) specifically excludes hemp seeds from the definition of marijuana, the court said the DEA could not ban them by treating the trace amounts of terahydrocannabinol they contain the same as synthesized THC. "The DEA has no authority to regulate drugs that are not scheduled," Judge Betty Fletcher wrote, "and it has not followed procedures required to schedule a substance. The DEA's definition of 'THC' contravenes the unambiguously expressed intent of Congress in the CSA and cannot be upheld."

This was the second time the DEA tried to ban hemp foods. First it tried to get by with a mere "interpretive rule," pretending it was not really changing the law. When the 9th Circuit rejected that maneuver, the DEA restated the ban in the form of new regulations, which today's ruling overturned. Since the 9th Circuit put a hold on enforcement of the ban pending resolution of the case, the cereals, snacks, and salad dressings the DEA found so offensive were never taken off the market.

Comments

|2.6.04 @ 5:17AM|#

You know, a lot of people talk trash about the 9th Circuit Court, but it has done some good things for this country, this being one of the more obvious examples. So what if Michael Savage hates it?

|2.6.04 @ 5:26AM|#

Excellent, the 9th Circuit put the DEA in their place as enforces, not law/reg makers. Its about time somebody or something has stood up to this abusive agency and walked away the victor!

Garth|2.6.04 @ 5:28AM|#

Is there any truth to the rumor that the Body Shop was compelled to halt sales of its Help Oil spray in the US by our over-active prohibitionist officials? I love the stuff and I have to go to Canada to get it....

|2.6.04 @ 5:31AM|#

You know, a lot of people talk trash about the 9th Circuit Court, but it has done some good things for this country, this being one of the more obvious examples.

I don't think we should be grateful just because the Ninth Circuit occasionally rules according to the law, instead of according to the whims of its members. It's supposed to rule according to the law one hundred percent of the time.

Warren|2.6.04 @ 5:35AM|#

I find the extremes the drug warriors go to positively jaw dropping. I would have thought such abuse of power would have provoked some sort of populist backlash. I few years ago I would have said most folks just don't care about the trampling of other peoples liberties, but now I think they don't care about liberty at all. BRING ON THE TYRANNY seems to be the prevailing view.

Thank you 9th Circuit. Now if only we could get AssCraft and his minions charged with felonies for this blatant abuse of office.

|2.6.04 @ 5:50AM|#

We'll get Ashcroft charged with the things he should be charged with on the same day that we get Bush impeached for swearing to uphold the constitution, then giving a speech about the importance of federalism, then sponsoring the No Child Left Behind act and stealing our money for a drug program for seniors. That would be justice, but it'll never happen.

|2.6.04 @ 6:17AM|#

WHAT ABOUT THE CHILDREN!! HAS ANYONE THOUGHT ABOUT THE CHILDREN!!!

|2.6.04 @ 6:22AM|#

Why do they want to ban hemp-related products so badly? Can you smoke 'em? Are they providing legal cover to cultivate weed? Not trying to make a point here (I support the circuit's decision) just curious.

|2.6.04 @ 6:39AM|#

That's just the problem, Tommy... there isn't a rational or coherent reason. It's politics, pure and simple. The appearance of being "tough on drugs" is a way to gain votes. Even when the drugs aren't drugs.

|2.6.04 @ 7:28AM|#

Congrats to Vote Hemp: THIMMESCH

|2.6.04 @ 8:15AM|#

Are we allowed to be happy about this? I thought that one of the unwritten rules of Hit&Run is that real libertarians only care about taxes and guns.

Just kidding, I think it's nice to see a tiny ray of sanity in hemp policy. :)

Zarathustra2101|2.6.04 @ 9:11AM|#

I don't think we should be grateful just because the Ninth Circuit occasionally rules according to the law, instead of according to the whims of its members. It's supposed to rule according to the law one hundred percent of the time. - Dan

First, the law is what the courts say it is. "It is emphatically the province and duty of the judicial department to say what the law is." (Marbury vs. Madison (1803) 5 U.S. 137). Courts apply the law to facts, they resolve ambiguities in the law, and when appropriate they follow prior decisional law. But for cases arising within its jurisdiction, the Ninth Circuit isn't beholden to any law other than the Constitution and prior decisional law of the U.S. Supreme Court.

Second, the Ninth Circuit isn't exactly a hive of whim and caprice. True, it is overturned more than any other federal appeals court, but it also has the heaviest caseload. Most decisions of the Ninth Circuit are not appealed to the Supreme Court. Of those that are, most are upheld.

SteveInClearwater|2.6.04 @ 9:32AM|#

To TOMMYG: The issues about hemp are twofold.

First, hemp was used for centuries to make a long list of products, including paper and cloth, as you likely know.

In the early 20th century, paper barons (DUPONT)were especially aggressive in getting hemp lumped in with its biological cousin, marijuana so they could make it illegal to produce in the USA. This tactic was sufficient to get it banned from manufacture in the U.S.

Late 20th century efforts to get it relegalized have likely been opposed by the same pool of competing industries, but they've been joined by ignorant drug-warring law enforcement.

The DEA promotes the very absurd notion that if industrial hemp was legal to grow in the U.S. that 'cops would have trouble distinguishing it from the dangerous marijuana'.

What they know, but pretend they don't, is that if hemp is grown in physical proximity to marijuana, the resulting cross pollination war is won by hemp. Any pot in the area will not resinate in a healthy way and thus the THC content is severely compromised for one thing. Other active ingredients are likewise diluted as the hemp takes over.

I like to think of this explanation by the DEA as being a self incrimination of their own intelligence.

Oh, due to much of the reason above, the vast majority of 'outdoor, wild marijuana' that drug task forces destroy nationwide is actually either wild hemp, or a crossbred field that at best meets the term, 'ditchweed'. It's full time work for literally hundreds of law enforcement agents who work in big teams with helicopters, trucks, farm equipment (for digging) and incineration tools (for burning).

If I were law enforcement, I'd love to do 'farming' worka all day and get paid like a senior state or federal cop along with all related employment benefits.

But I'm not...I just hang around with the more enlightened officers and judges instead.

|2.6.04 @ 9:34AM|#

Steve-

But by cracking down on the less potent weed formed by cross-pollination we're saving people's lungs.

If the weed is bad, they'll need to smoke more to get high. By restricting the market to dealers with potent stuff we're making sure that they'll get their highs with less weed, therefore less smoke.

It's for the children!

|2.6.04 @ 9:44AM|#

"It is emphatically the province and duty of the judicial department to say what the law is." (Marbury vs. Madison (1803) 5 U.S. 137).

"The Supreme Court has made it's decision, now let them enforce it." -- Andrew Jackson

The courts have *claimed* the final power to interpret the law, but what they actually have is a gentleman's agreement with the legislative and executive branches. The judicial branch agrees to stick to the intent of the legislative branch, and the executive branch agrees to pay attention to the judicial branch.

The courts can opt to ignore the written law and just make shit up, as the Ninth Circuit loves to do. But this is neither more or less legal or Constitutional than Andrew Jackson's decision to blow off the Judicial Branch and expel the Cherokee from Georgia.

Also, the ability to decide the law is reserved for the court system as a whole, not for the Ninth Circuit. The Ninth Circuit is obligated to respect precedent and SCOTUS rulings; it has an annoying habit of doing neither.

There is a good article on Ninth Circuit reversals here. It is definitely disproportionately reversed, even considering how many cases it hears; you are invited to speculate as to why.

|2.7.04 @ 2:07AM|#

Concerning those who ask why the DEA opposes hemp seed, which can't make you high: for the same reasons that schools, in the name of combating drug use, expel kids for Midol or asthma inhalers, which can't make you high, either.

I know it's the same reason in both cases but don't know what those reasons are, exactly. Perhaps because blanket rules are easier than having to weigh the merits of individual cases? Allowing authority figures to do your thinking for you is SO much easier than having to think for yourself.

|2.7.04 @ 2:09AM|#

This just occurred to me:

Poppy-seed bagels do in fact make people test positive for heroin use, so presumably a heroin user could get drug-test results nullified by saying "I don't use heroin, I just eat poppy-seed bagels." Is it possible that the DEA opposes hemp stuff because they result in false positives for marijuana? God forbid we give these dangerous criminals a possible 'out.'

|2.7.04 @ 2:09AM|#

This just occurred to me:

Poppy-seed bagels do in fact make people test positive for heroin use, so presumably a heroin user could get drug-test results nullified by saying "I don't use heroin, I just eat poppy-seed bagels." Is it possible that the DEA opposes hemp stuff because they result in false positives for marijuana? God forbid we give these dangerous criminals a possible 'out.'

|2.7.04 @ 2:23AM|#

THis is good news for hemp, but can someone save ephedra? I have been using ephedra for years with no ill effects, however, come April 12, the ill effect may become me sitting in prison. I know its been linked to approximately 155 deaths, you know, the type of deaths that occur when someone is badly out of shape, won't excersice for months and then downs ephedra diets pills for a month straight without futher excercise and then their heart explodes. That's not me, never was, I get my excersize routinely but use a little ephedra tea to help keep me going through those long days at work or that late night long drive. Coffee is just too hard on my ulcer so that is not an option, nor is coke or pepsi. When I run off the road late at night and kill myself, will one of you wonderful H&R readers sue the gov't for wrongful death for me? I know its night quite libertarian to do so, but sometimes you have to fight fire with fire. I want the feds to know that their unscientific ban on ephedra led directly to my death. Please name the Steve Bechler and Corrie Stinger families as defendants as well. They should take some responsibility when they won't except their son's/husbands/brothers/fathers personal responsibility to stick to the recommended us of said diet pills.

|2.7.04 @ 2:25AM|#

Jennifer, a friend of mine had to sign a notarized affidavit testifying that he had eaten poppy-seed bagels wit a cop friend of his, after the cop had failed a drug test.

Which leads to the question: if your employee is using heroin on a regular basis, don't you think there'd be some signs that would show up before the random drug test?

|2.7.04 @ 2:29AM|#

Which leads to the question: if your employee is using heroin on a regular basis, don't you think there'd be some signs that would show up before the random drug test?

joe-
Jacob's book, Saying Yes, documents a couple of professionals who use heroin on the weekends without any ill effects to their lives. I believe one of them was a doctor and another was a CEO, however, its been a year since I read the book.

|2.7.04 @ 3:17AM|#

Here's a thought: If the tests can't distinguish between recent bagel consumption and heroin use in the more distant past ("more distant" being a relative term, probably a couple days), then here's a radical thought: How about examining performance? Presumably a guy who got high on his way to work will show diminished performance. If so, his employer could simply say "Hey, you aren't doing your job! You're fired!" and spare himself the cost of a drug test.

Nah, that would make too much sense.

(Insert caveat that I respect the right of a private employer to set his or her own standards, however irrational they might be, but I also have the right to ridicule irrational standards, they have the right to ignore me, I have the right to continue the ridicule anyway, etc. etc. etc. Besides, from what I understand the government has done its part to encourage drug testing in companies that would otherwise be perfectly happy to fire people based on performance alone.)

SteveInClearwater|2.7.04 @ 4:42AM|#

Jennifer is correct. I was careless in not including the drug testing industry as an adjunct opponent to hemp.

Now most all hemp food products contain insufficient THC to even trigger most minimum levels in a drug test, but it could possibly do so.

And of course the guy they would miss busting on the test will be the school bus driver that runs over another bus full of nuns during rush hour, and further has his flaming rig slide across a major intersection into the side of a tanker truck for sulphuric acid.

|2.7.04 @ 7:23AM|#

As an unemployed person whose benefits ran out, I would be happy to offer my services to any cops in need, and sign affidavits to the effect that I've eaten poppy-seed bagels with them. I never thought I'd be whorish enough to eat bagels for money rather than love, but desperate situations call for desperate measures.

What would have happened to that cop if he'd eaten his bagels alone?

|2.7.04 @ 7:40AM|#

Zarathustra,

To demonstrate your incorrect interpretation of the court's authority, I cite the writings of the Honorable Douglas H. Ginsburg in his introduction to the 2002-2003 Cato Supreme Court Review:

"When I say ours is a written
constitution, I refer, of course, to the actual Constitution, the Constitution
of the United States, the document reprinted in this little
pamphlet in my hand. I do not refer to the legion of Supreme Court
decisions interpreting the Constitution, applying it to particular factual
situations, and in many cases providing us with an extended
exegesis on its meaning. Those decisions are not the Constitution;
as a practical matter, they are reasonably reliable guides to its application
in future cases, but they are not the Constitution itself. To
maintain otherwise is to ascribe to the Supreme Court a doctrine of
infallibility it has never claimed for itself."

Prior interpretations by a court do not constitute law, and can be and have been shown to be in error. The law is *not* what the court says it is, without qualification. The law is what is written. Courts certainly should apply the law to facts, but they do not always do that.

|2.7.04 @ 7:41AM|#

What really pisses me off here is the total lack of focus and attention on the other latent drug scourge in our midst: poppyseed bagels!

The consumption of the poppy seeds used on bagels and muffins can cause positive results on drug screening tests; even snopes says it's true!

Well, if you can test positive then it must be having an effect. When is the DEA going to act? Why have they failed to act?

Heads should roll!

|2.7.04 @ 7:56AM|#

"... real libertarians only care about taxes and guns.."

Henry David, you forget, all of us Libertarians are just 'Republicans who want to take drugs'.

|2.7.04 @ 10:21AM|#

JSM, I'd be curious to find out how those professionals are doing a year later. Using herioin regularly ain't the same as sparking up.

|2.7.04 @ 12:23PM|#

Steve-

Thank-you for finally shedding light on this scourge. Every Sunday after church my wife and I go to a coffee shop to talk before she goes to work. (My wife works most weekends.) At this coffee shop I invariably get a poppy seed baggle. Right now it's a controlled habit, but just the other day I found myself thinking "Hey, maybe I'll get a poppy seed bagle today." That was on a Wednesday. It's only a matter of time before I succumb.

Help me! Please! Pass a law to save me from myself and the dreaded poppy seed!

|2.9.04 @ 1:00AM|#

well, that's both true and not so true. you can buy plants with all sorts of alkaloids and precursors in them legally and (relatively) cheaply, from san pedro to poppy to morning glory seeds to phalaris grass, etc. the work involved in extracting the requisite chemicals seems beyond the reward scenario envisioned by fratboys and impressionable teens and thusly slides under the radar. at least, we hope.

when they start to become mentioned more frequently in the journals of today's intelligensia (maxim, gear, juggz, etc) as happened with salvia divinorum (a marijuana replacement like catnip dipped in DMT is a marijuana replacement) that the heat gets turned up. though i'd be hard pressed to tell you the legal status of SD today.

|2.9.04 @ 10:57AM|#

ephedra_outlaw: is ma huang going to be banned as well? if not you could always make extractions.

|2.9.04 @ 12:48PM|#

ephedra_outlaw: is ma huang going to be banned as well? if not you could always make extractions.

dhex, considering this article, give the FDA/DEA an inch and they will ban everything.

Don't drug test me|2.10.04 @ 12:09PM|#

Drug testing is no longer a concern with hemp foods. The hemp companies dealt with it by establishing the TestPledge program (http://www.testpledge.com) based on a study which was published in the Journal of Analytical Toxicology.

Rose Michael|9.10.04 @ 2:59AM|#

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