It turns out that hand cream I bought at The Body Shop a few years ago was a controlled substance. But it's not anymore. Probably.
This is the upshot of two rules recently unveiled by the Drug Enforcement Administration. The first announced that all products containing the slightest trace of THC, marijuana's main active ingredient, are prohibited Schedule I substances.
This came as a surprise to the dozens of companies that for years have been openly selling products made from cannabis fiber, seeds, or oil. Such "hemp" products, which include clothing, snacks, nutritional supplements, and toiletries, may contain tiny amounts of THC, but not enough to get anyone high.
The second DEA rule declared that THC-tainted hemp products not intended for internal consumption are exempt from the ban provided that "using them does not cause THC to enter the human body." The DEA is pretty sure that "personal care 'hemp' products" such as hand cream, soap, and shampoo qualify for the exemption, although it is "unaware of any scientific evidence definitively answering this question."
But edible hemp products–including dietary supplements as well as pasta, tortilla chips, candy bars, salad dressings, veggie burgers, cheese, ice cream, and beer–are in the same legal category as heroin. According to the DEA, they have been since 1970. It's just that no one realized it until now.
When Congress banned marijuana in 1937, it specifically exempted nonpsychoactive parts of the cannabis plant used to make products such as rope and industrial lubricants. That exemption was carried over into the Controlled Substances Act of 1970, which at the same time banned "any material, compound, mixture, or preparation which contains any quantity of…Tetrahydrocannabinols [THC]."
Congress apparently did not realize what today's highly sensitive chemical analyses show: THC is present, albeit in tiny amounts, throughout the plant, not just in the buds and leaves. But that should not have been a problem, because the DEA's own regulations defined THC as "synthetic equivalents of the substances contained in the plant."
The DEA itself cites two court cases supporting the assumption that the prohibition does not cover natural traces of THC in parts of the plant that are excluded from the definition of marijuana. If it did, many products that are not drugs by any stretch of the imagination–including paper, bird seed, and textiles–would be illegal.
The DEA nevertheless decided that is what the law demands, despite clear evidence that it's not what Congress intended. To make the result look slightly less silly, the DEA is allowing nonedible hemp products to remain on the market, even though its interpretation of the statute does not permit such a distinction.
The DEA's ban can be understood partly as a knee-jerk reaction against anything associated with marijuana, even if it has nothing to do with intoxication. But the most plausible explanation for focusing on foods, beverages, and nuritional supplements is the concern that such products can interfere with drug testing.
Researchers have found that people who don't smoke pot but consume hemp seed oil may test positive for marijuana. After a sergeant who used the oil as a dietary supplement was acquitted of marijuana charges in 1997, the Air Force ordered its personnel to stay away from the stuff. "Such applications for human consumption are confounding our Federal drug control testing program," then-drug czar Barry McCaffrey complained last year.
The American Association of Medical Review Officers, which represents drug testing specialists, has been warning for years that government-mandated urinalysis could be overturned on constitutional grounds because hemp products make the results unreliable. "Products that cause a positive THC urinalysis must be removed from commerce," said a 1997 editorial in the organization's journal, "or we will be forced by the courts to stop testing for marijuana."
This is rather like demanding the prohibition of poppy seeds, which also can generate false positives in drug tests. Instead, the onus should be on the drug testing industry to improve its methods. A 2000 study by Leson Environmental Consulting in Berkeley, California, found that the consumption of hemp seed oil should not confound properly conducted tests.
In any case, the concern about drug testing could be addressed by setting a legal cutoff for THC in edible hemp products, as Canada has done. But that would require congressional debate and legislation. It's so much easier to decree the result you want and pretend that nothing has really changed.