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A New Suit By Farmers Against the DEA Illustrates Why The War on Drugs Should Not Include a War on Hemp


Tuesday, Jun. 19, 2007

Yesterday, two farmers filed suit in the federal district court of North Dakota. They are seeking a declaratory judgment against the Drug Enforcement Administration (DEA) that would allow them to cultivate hemp, a profitable crop with many legal uses.

The DEA, however, is likely to strongly defend the suit. After all, ever since its very inception, the DEA has feared that if it allows "industrial" hemp to be produced, the result will be to seriously undermine its war on drugs, including marijuana. As I will explain, its position has led to a bizarre and, some argue, utterly irrational situation: It makes little sense for the War on Drugs to also include a War on Hemp.

A case decided last year by the U.S. Court of Appeals for the Eighth Circuit illustrates some of this irrationality, but doesn't give the full picture. In this column, I'll provide a chronology of the DEA's war on this plant and its champions; discuss a set of legal questions that, in my view, complicates the agency's war plans; and finally, offer a prediction of hemp's regulatory future.

The Cannabis Conundrum: A Controlled Substance with Highly Beneficial Applications

The Controlled Substances Act (CSA) prohibits the manufacture, distribution, dispensation, or possession of any listed "controlled substance," except as authorized by the CSA or the DEA. Marijuana is included, and even its medicinal use remains flatly prohibited. In 2006, the Supreme Court entertained a Commerce Clause challenge to that latter prohibition, in Gonzales v. Raich, but the challengers lost.

This unbending legal regime is a great shame, because the marijuana plant is a botanical superstar. It generates a portfolio of raw materials for products like rope and canvas (which reportedly covered the Conestoga wagons of the Nineteenth Century West), oil, paper, and cellulose.

This is no small matter today: Compared to most tree species, as the U.S. Department of Agriculture has acknowledged, hemp is several times more efficient for producing paper and fiber, is much less dependent upon pesticides and herbicides than crops like cotton, and creates a seed oil high in essential fatty acids. The oil alone has countless applications. Indeed, the U.S. Department of Agriculture even ordered cannabis production during World War II in its "Hemp for Victory" program.

So if you're looking for an "assault on reason," a flat ban on this plant--given its multitude of beneficial uses, most of which are fossil fuel-reducing and organic in every sense--certainly fits the bill.

Cannabis's Early History: The 1937 Act

Of course, the issue with cannabis sativa is that some of its varieties are grown to maximize the creation of tetrahydrocannabinols (THC). THC is a psychoactive compound, and, unfortunately, the THC producer is the same genus and species as the botanical wunderkind. They are just different parts of the same plant or, in some instances, different varietals. Unfortunately, throughout American history, the U.S. government has too often acted as if these two features of the plant are inseparable - and that has led to some absurd results.

The cannabis plant was among the first drugs the U.S. Government tried to eradicate in this country, beginning in 1937 with the Marihuana Tax Act. The 1937 law was preceded only by the Harrison Narcotics Tax Act of 1914, which taxed opiates and cocaine, and, of course, the Eighteenth Amendment, imposing Prohibition.

While the 1937 law was formally a tax, it might as well have been a ban, for it made the cost of the plant prohibitively high, and thus effectively prohibited the growing of varieties and foliage to maximize THC ("pot"). Nevertheless, the growing of "hemp"--which has THC concentrations too low to move the needle--was taxed hardly at all.

A Senate Report on the bill made this point quite clear:

"The testimony before the committee showed definitely that neither the mature stalk of the hemp plant nor the fiber produced therefrom contains any drug, narcotic, or harmful property whatsoever and because of that fact the fiber and mature stalk have been exempted from the operation of the law."

Accordingly, the Act specifically excluded "the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination." Put another way, it excludes hemp even as it sweeps in marijuana.

The Rockefeller Era and After: New Laws Continue the Hemp Exception

Fast-forward to the Rockefeller era - when the CSA and other drug laws were enacted. Notably, these laws all adopted the 1937 Act's definition of "marihuana," Which, again, was drafted to exclude hemp. Thus, for a time, hemp production continued unabated. But then, complications arose.

The CSA and other laws of the 1960s and '70s had to cope with the synthetic production of C21 H30 O2 (THC). THC and THC-containing products were thus added to "Schedule I" of prohibited drugs, first by a regulation from the DEA's predecessor, the Bureau of Narcotics and Dangerous Drugs, and then via the 1970 Comprehensive Drug Abuse Prevention and Control Act (CDAPCA).

Meanwhile, "marihuana" (with that same original statutory definition from the 1937 Act) remained on the same list, as well - notwithstanding the obvious fact that it was the original source of THC. Thus, like the CSA, the CDAPCA while prohibiting cannabis sativa, retained the original, broad exception for hemp fiber, "stalks," "seeds," and any "manufacture" therefrom.

The Advent of the DEA - and the Start of the War on Hemp

Then came the DEA - and the first offensives in what would become the war on hemp.

It turns out that what Congress thought was "definite" in 1937 is actually a little complicated: The whole cannabis plant contains THC: it occurs in at least trace levels throughout the organism. Thus, even if the THC in hemp seed oil is so low that it cannot possibly induce psychotropic effects, technically, the person who ingests hemp seed oil is still ingesting THC - which Schedule I prohibited. Moreover, the DEA is fond of arguing, to get to the "mature" stage where its productivity is realized, hemp must first sprout through a high-THC (pot) phase - and in that phase, the DEA suggests, it could be poached or simply sold.

During the same era, the pharmaceutical industry found several applications for THC. It developed and marketed a synthetic form under the name Marinol to control nausea and vomiting caused by chemotherapy and stimulate appetite in AIDS patients. (Marinol was rescheduled in 1999 and placed in Schedule III of the CSA, where it may be used by prescription.)

Several inquiries from the public in the late 1990s alerted DEA to the fact that some interpreted the drug laws to exempt "hemp" as such. DEA then tried to "clarify" the CSA, CDAPCA, and its regulations with an "interpretive" rule and a follow-up "legislative" rule asserting that the "THC" entry on Schedule I included both natural and synthetic THC alike. The upshot was that, while the DEA would allow imported, nonedible hemp products to remain in commerce, all edible hemp was prohibited, as was all domestic cultivation of cannabis sativa, even if it was intended for "industrial" uses.

Yet, in a series of administrative law twists and turns, the Ninth Circuit eventually invalidated those rules. The result was to leave the CSA and CDAPCA as the only laws in effect on the matter.

Today's DEA's View: It's the THC Stupid!

In the wake of those cases, Justice Department and DEA lawyers maintain that the CDAPCA prohibits everything containing THC--whether synthetic or organic--including all parts of the cannabis plant. However, it's highly debatable whether that's true: The federal courts of appeal have divided over the question whether all parts of the cannabis plant are Schedule I controlled substances.

Unfortunately, despite the legal ambiguity, the DEA has dug in its heels, acting as if the law were clear, and as if every use of cannabis were created equal.

One case decided in 2006 by the U.S. Court of Appeals for the Eighth Circuit, United States v. White Plume, is especially unfortunate.

The case arose because in 1998, the Oglala Sioux Tribe amended its tribal law to allow cultivation of "industrial hemp" on tribal lands, and some of its members did so. Rather than prosecute, the government twice destroyed the crop, and then sought a declaratory judgment against White Plume.

The district court obliged, as did the Eighth Circuit, which deferred to the DEA's construction of the drug laws and held that all THC-containing articles - including cannabis plants - are Schedule I-prohibited.

What accounts for a decision that prohibited a Native American tribe from growing and selling hemp for harmless industrial purposes? The short answer is that courts are generally inclined to defer to agencies' interpretations of the statutes they are charged with enforcing - in this case, the CDAPCA and CSA.

However, the suit filed yesterday in North Dakota may showcase the consequences of the agency's rigidity on this point. Given such a short growing season, competitors in Canada who are making money on the crop in our globalized agricultural economy, and so many possibilities for this plant, DEA should have to answer for its interpretation of the law in this respect, at least: Isn't there some other kind of trouble we can borrow?

Will Congress change the agency's mind about hemp, or will the courts? The prospect of either happening seems bleak, and that underscores how perverse our drug laws have become. In a time when it is so important to be "green," hemp is one of the "greenest" things around.

Jamison Colburn teaches environmental and administrative law at Western New England College, School of Law. Prior to teaching, he was Assistant Regional Counsel for the United States Environmental Protection Agency in Philadelphia.

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