There’s no doubt about it: Jimmy Trapella loves his hemp. Hanging outside Newbury Street’s Hempest, Jimmy’s about to chomp into a hempseed bar. Earlier this morning, he enjoyed hempseed sprinkled on his bowl of breakfast cereal and had some hempseed nuts on a salad for lunch.
Jimmy owns a hemp wardrobe, too, including a belt, pants, bag, and shirt — most of which he’s currently wearing. And the 25-year-old is contemplating writing a song about hemp for his band. But despite his blissed-out devotion to the leafy green, Jimmy is not as chill as one might surmise. That’s because, depending on the outcome of an upcoming legal battle in the California courts, Jimmy’s afternoon snack could soon land him in prison.
"I’m bummed," he says.
If you think hemp equals marijuana, you’re not alone. But in fact, the two plants are actually different varieties of the same species. One is grown to maximize fiber content, the other to maximize psychochemical effect. One is legal in brownies, the other isn’t. One was grown as a cash crop by our forebears, the other was not inhaled by a recent president.
But it seems even the US Drug Enforcement Administration (DEA) has difficultly differentiating between the two. In October, the DEA published an interpretive rule in the Federal Register banning hemp-food products containing any amount of tetrahydrocannabinol (THC), the psychoactive compound found in marijuana. The rule — which included an exemption for personal-care products like soap and shampoo and industrial products like paper, rope, and clothing — reinterpreted the 1970 Controlled Substances Act, which classified all drugs into five groups. The DEA’s rule also effectively rewrote a 60-year-old definition from the 1937 Marijuana Tax Act, which stated that "neither the mature stalk of the hemp plant nor the fiber produced therefrom contains any drug, narcotic, or harmful property whatsoever."
"Given the recent increase in marketing of these so-called ‘hemp’ products in the United States," reads the rule, written by DEA administrator Asa Hutchinson, "and given that many such products have recently been determined to contain THC, DEA has repeatedly been asked in recent months whether the THC content of such products renders them controlled substances despite the fact that they are reportedly made from portions of the cannabis plant that are excluded from the definition of marijuana."
The agency’s decision: yes. As a result, all hemp intended for consumption that contains any amount of THC has suddenly been classified as a Schedule I substance — which means that, according to the DEA’s new regulation, Jimmy’s afternoon snack is basically the same thing as smoking a joint, shooting smack, or dropping a tab. Hemp pretzels, nutrition bars, pancake mix, salad dressing, beer — all illegal. The new rule gave store owners a 120-day window to remove hemp-food products from their shelves.
Many in the industry cried foul. Led by the Hemp Industries Association (HIA), a trade organization representing more than 250 companies and small businesses, seven manufacturers banded together and filed a request for a formal review of the rule in the Ninth Circuit Court of Appeals. "[The DEA’s rules] were arbitrary, they didn’t follow due process, and they weren’t based on due process," argues John Roulac, founder of Nutiva, which manufactures hemp and flax bars, among other hemp products. "What we’re doing is perfectly legal, healthy, sustainable." The review, which begins April 8 in San Francisco, could effectively reverse the DEA’s rule. In addition, Canadian company Kenex has accused the US government of violating the North American Free Trade Agreement (NAFTA) by impeding the import of hemp seeds. In March, the company filed notice of an intent to arbitrate under NAFTA’s Chapter 11, requesting tens of millions of dollars in compensation for lost revenues.
In the meantime, the group of hemp supporters filed an urgent motion to stay the DEA’s rule, which would allow stores to continue to stock their hemp-food products. "This action seriously threatens our business," the motion reads, "to the point that we may need to shut down our operations and force us to go out of business." In early March, the Ninth Circuit granted the stay, meaning that until the court finishes its review of the rule and renders its final decision, it’s still legal to sell — and consume — hemp-food products.
Michael Cutler, a drug-policy-reform advocate and an attorney for the Voluntary Committee of Lawyers, sees the stay as substantial indication that the feds’ case has little merit. "I don’t think the government’s even close to having a case," he says. "The fact that a circuit court would step on a government agency, particularly the DEA, is extraordinary. And to do it as an emergency-injunctive action, with only affidavits, and without evidence," is even more extraordinary.