At midnight on Tuesday last week, while sleeping soundly in his bed, the federal government reclassified Missoula resident Tim O’Leary from a legitimate businessman to a felon. At that moment a federal law took effect that “clarifies” the government’s war on drugs, criminalizing all edible products that contain hemp.
The state of Montana has already sanctioned O’Leary in his dealing of a legal intoxicant: alcohol. As the owner of Missoula’s Kettlehouse Brewery, O’Leary brews more than 1,500 kegs of beer annually and distributes them across the state. Among his signature brews are two beers marketed under the “bongwater” label: “Ye Olde Bongwater Porter,” a hemp-based dark beer sporting a frothy head and a creamy finish, and “Fresh Bongwater Ale,” a lighter, nutty beer. Both beers sport a cannabis leaf on their labels. According to O’Leary, it is the oily hemp seed that gives the beers their unique qualities, which have been used in beer—and other foods—for ages.
“Hemp is a cousin to hops, so historically hemp buds have been thrown into beer,” says O’Leary, who, like hundreds of other American food producers who use hemp seeds in their production, is watching this new ruling closely.
Because food products made of cannabis sativa—the plant species containing hundreds of biologically distinct varieties of both hemp and marijuana—can contain trace amounts of the psychoactive agent delta-9 tetrahydrocannabinol (THC), they are now considered illegal. These trace amounts occur naturally in the plant and are measured in parts per million. Yet even the most desperate pot smoker quickly discovers that it’s virtually impossible to smoke or eat enough granola bars, toasted seeds or oil necessary to catch a buzz from an edible hemp product.
“If you were to try to get high off of smoking industrial hemp buds, you’d get a severe headache and you wouldn’t even come close,” says O’Leary. “It’s like trying to get drunk off a non-alcoholic beer.”
Still, the feds are unfazed. Last October the federal Drug Enforcement Administration (DEA) announced that as of Feb. 6, edible hemp products containing any measurable quantity of THC will be treated as a Schedule I controlled substance. Because the DEA doesn’t create new laws but only enforces existing ones, the ruling came as a “clarification,” enacted without public comment or appeal.
Whether food products incapable of producing an intoxicating effect represent a real public health concern—and thus justify an appropriate use of tax dollars for enforcement—is a question that Montana DEA’s top agent Barry Lucero has been directed not to answer. Instead, he refers all such questions to DEA headquarters in Washington, D.C.
“We’re looking at the Controlled Substance Act,” says Will Glaspy, with the DEA in Washington, D.C., “and it does not specify parts per hundred or parts per million or anything else. The Controlled Substance Act just says ‘THC.’”
Passed in 1970, the Controlled Substance Act (CSA) specifically criminalizes the sale, possession and distribution of naturally occurring or synthetic THC. But as a nation with a long history of industrial hemp production and consumption, the lawmakers crafted the CSA to specifically exempt industrial hemp from regulatory control.
Still, Glaspy says the ruling changes nothing. “Hemp paper is not illegal. Hemp clothing is not illegal. If you have a hemp food product that does not contain THC, it would be legal as well,” says Glaspy.
But where federal law mentions “marihuana” in the CSA, it specifically exempts industrial hemp, and pro-hemp advocates say that this exemption includes hemp containing trace amounts of non-psychoactive THC. In fact, the CSA definition of “marihuana” “does not include the mature stalks of such plant…oil or cake made from seeds of such plant… or the sterilized seed of such plant which is incapable of germination.”
Certainly this is not the first time that apparent contradictions have appeared in federal law, but the hemp industry is now arguing that lumping hemp in with other Schedule I drugs—including heroin, methamphetamines, cocaine and PCP—is grossly inappropriate.
For O’Leary, the DEA clarification clarifies nothing. In addition to his beers, O’Leary sells a two-ounce bag of roasted hemp seeds, a natural, low-fat, high-protein snack similar to sunflower seeds. (A sign in his tasting room reads, “The only place in Montana where you can drink bongwater and eat hemp seeds!”)
And while the hemp used in O’Leary’s brew is guaranteed to be THC-free, the hemp seeds are guaranteed by the Canadian government to only contain “less than 10 parts per million” of THC. Despite falling far below the threshold for any psychoactive affect, this threshold it is still not low enough to satisfy the DEA.
How real is the public health risk? Consider a 2002 report from the Office of National Drug Control Policy, which states that while more than a quarter of Montana’s residents admit to smoking marijuana at least occasionally, none has ever died from a marijuana overdose. In short, even in its most potent form, THC is not toxic enough to cause harm. Still, without asserting any risk to public health, and refusing to address whether trace amounts of THC can make anyone high, the DEA is moving ahead with its enforcement.
“The argument… in the lawsuit saying it has no psychoactive affect, I don’t know,” says Glaspy. “I haven’t seen any scientific studies, so I don’t know.”
“My product, beer, has potentially a more damaging affect on society, almost as bad as cigarettes,” argues O’Leary. “But used in moderation it can be a benefit.”
Whether used in shampoo or cereal, industrial hemp is legally exempt from DEA jurisdiction under existing language, at least according to the Hemp Industries Association (HIA). Representing more than 250 producers of hemp seed, hemp oil, hemp fiber, hemp food, hemp biofuel, clothing, beverage and body care companies and retailers in North America, the HIA is suing the federal government over the recent change in the law.
On behalf of the $30 million-dollar-a-year industry, the HIA last week filed suit in California’s Ninth Circuit Court of Appeals to block the rule that would make any edible hemp product containing trace amounts of THC as illegal as heroin. Although the suit seeks monetary compensation, the industry insists that the primary purpose of the action is to force the government into a “reasonable” solution to the hemp/THC dilemma.
In 1998, just months after the U.S. Supreme Court wrote that marijuana has “no currently accepted medical use,” the Canadian government began legalizing and even subsidizing hemp production in carefully regulated fields.
This was good news not only for Canadian farmers but also for the more than 300 American hemp food manufacturers who have watched their industry double in each of the last five years, totaling more than $5 million in sales last year. These firms use hemp oil for its impressive nutritional profile: It’s a sought-after and useful ingredient in energy bars, pancake mixes, cereals, breads, coffees, cheeses, vegetarian burgers, and dozens of other products, including beer.
While creaminess and name recognition may be the main reasons why the Kettlehouse uses hemp in its beers, it is hemp’s nutritional properties that make it a hit across town at the Good Food Store. The hemp plant is nature’s single richest source of essential fatty acids (EFAs), those “good” fats found in products like olive oil which the body cannot produce. Hemp is also high in Vitamin E, has a well-balanced protein profile, and is revered as “nature’s most perfectly balanced oil.”
“By weight, hemp oil contains 30 percent EFAs and 30 percent high-quality protein,” says Eddie Johnson, a bulk food buyer at the Good Food Store. Missoula’s healthy food distributor sells numerous hemp products, including raw hemp seeds, hemp granola and hemp nutrition bars.
“We’ve been assured by the company that supplies us that no THC is contained in our products,” says Johnson. “We feel that we don’t need to withdraw our product. Yet.”
Like the Kettlehouse Brewery, the Good Food Store purchases its hemp seeds from Canada, where the government uses GPS satellite systems to survey hemp fields, and also conducts random tests to guarantee that edible hemp products contain no more than 10 parts per million of the popular cannabinoid.
While the DEA insists that hemp’s negligible traces of THC make it indistinguishable from its intoxicating cousin, marijuana, neither O’Leary nor Johnson believe they are doing anything wrong. “We’re confident in our supplier, and we’ll continue to sell [edible hemp products] until they tell us not to,” says Johnson, adding that his store has no intention of breaking the law. But at the brewery, O’Leary sees a different opportunity.
“We’re taking seeds that don’t have any measurable THC and putting 25 pounds into 434 gallons of beer,” says O’Leary. “It’s really kind of funny that people are up in arms about hemp in food products because they’re so diluted. It’s not even going to come close to getting you high. If the DEA comes in here and repossesses all our non-measurable THC crushed hemp pelletized seeds, it will just stain their image.”
Why the feds’ sudden interest in an admittedly harmless food product? Perhaps because national trends indicate a growing weariness with a largely ineffective drug war. Colorado recently become the 13th state to allow qualified patients to grow medicinal marijuana plants, while Mendocino County, Calif., voters passed an initiative legalizing growing up to five marijuana plants for personal recreational use. Meanwhile, a dozen more states are considering similar medical marijuana legislation later this year.
But federal law enforcement agencies refuse to honor state laws decriminalizing the herb. In California last year, 30 federal agents raided a medical marijuana distribution facility, despite its five years of operation and support from the local sheriff and city council. No charges were filed, however, as prosecutors feared a sympathetic jury in cannabis-friendly California.
The DEA’s move against edible hemp is even more remarkable when measured against international drug war trends. Decriminalization or legalization measures have been implemented in countries from Australia to Portugal, while American drug policy has come under sharp criticism internationally as fewer people buy into the cannabis witch hunt.
In a bold and precedent-setting vote, the United States was ejected from both the United Nations (UN) Drug Control Board and the UN Human Rights Board on the same day last year. Even former UN Secretary General Kofi Annon encouraged African nations to speak out against America’s war on drugs for being “racist” and draconian.
Polls in Canada and the United Kingdom regularly show a popular majority supporting reform, and a USA Today/CNN/Gallup poll taken last fall found a record 34 percent of Americans are in favor of legalizing the herb outright.
Similarly, recent voter initiatives across the country have been pulling for the decriminalization or legalization of recreational and medicinal marijuana. Still, as an enforcement branch of government, the DEA must follow its own directive.
“We don’t write the law, but the DEA is here to enforce the law,” says Glaspy. “What’s important is Congress passed a law that indicates that THC is a controlled substance. The only thing that has changed is that DEA has issued a clarification to make sure that people understand what the law is.”
Buds of a feather
Undoubtedly, a homegrown brewery concocting two “Bongwater” beers is targeting a highly specific- and growing market of beer drinkers.
“When we came out with Ye Olde Bongwater we were struggling. It was one of those do-or-die things,” says O’Leary. “But there’s nothing better to get people into our taproom than Bongwater, because if you’re passing through from New Jersey and you hear about a brewery brewing Olde Bongwater, a lot of people are going to come looking for that brewery.
“Both Jay Leno and David Letterman have made wisecracks about Olde Bongwater,” he adds. “Everybody is using the tie to illicit use of marijuana in marketing their hemp products. Just look at the leaf. The first thing everybody thinks of is pot.”
Maybe not everyone, but certainly the DEA thinks O’Leary is capitalizing on the hemp/marijuana connection. “Don’t you figure that he’s kind of in the minority as far as people who look to have a legitimate business who are using hemp in their product?” asks Glaspy. “I think some of the biggest proponents of the hemp issue are those who are in favor of legalization of marijuana anyway.”
While O’Leary’s business is alcohol—not THC—he’s regularly criticized from both sides for refusing to take a stand in the ongoing debates that clouds the hemp/marijuana decriminalization issue. On one side, aggressively pro-marijuana legalization folks appeal to the “bongwater” brewery to act as a platform for popularizing their position.
“People have asked me to take a stance on legalizing pot, but I’ll let that faction do that,” O’Leary says. “I just want to brew beer. I’m straddling the fence by drawing on that allusion.”
But O’Leary gets pressure from the other side, too. Pro-hemp advocates without a marijuana legalization agenda try hard to distance themselves from the pot-smoking stigma, and they’ve come down hard on O’Leary for continuing to obscure the distinction between hemp and marijuana.
“These guys say, ‘You’ve got to separate the rope from the dope,’” O’Leary says. “But they’re so intertwined. We’ve only aligned ourselves with the hemp industry by default.”
Ironically, both the DEA and pro-liberalization folks face a dilemma when categorizing the plants. Each painstakingly clarifies the distinctions and similarities between hemp and marijuana to best fit their particular agendas.
But because THC inevitably occurs in hemp plants, and hemp is legal, the DEA faces a hair-splitting challenge. Grouping together all ingested cannabis into one pot makes their job easier.
Ironically, the United States stands alone among the world’s industrialized nations in not recognizing the distinction and still refuses to allow farmers to grow hemp. Across much of the industrialized world the leafy green plants are ubiquitous, yet foreign law enforcement agencies reports few additional challenges in enforcing their drug laws.
In part this is due to the fact that hemp pollen is microscopic and easily carried by the wind. In places where hemp is legal, large-scale industrial hemp farms readily cross-pollinate with the crops of marijuana farmers, lowering its THC content.
On the home front, even Montana’s conservative state officials have recognized the difference between hemp and marijuana, anticipating the economic boon hemp could bring to the state’s struggling farmers. Hemp grows easily across the nation, requires little irrigation or chemical application, has innumerable uses and brings with it a long agricultural history.
In 2001 the Montana Legislature passed a bill allowing Montana’s farmers to grow hemp—if and when the federal government lifts its ban. As it stands, however, U.S. farmers may not grow hemp, though they are allowed to wear hemp clothing, feed their birds sterilized hemp seeds, and tie their bales with hemp twine, most of which is grown by Canadian farmers.
“We do believe that industrial hemp has the potential to be a significant cash crop in this state,” says Montana Department of Agriculture spokesperson Mike Sullivan. In fact, only seven states have not entertained similar hemp legislation.
Straddling the fence
But despite hemp’s seemingly unshakable association with pot, most of the people snatching up the Kettlehouse stash of Bongwater paraphernalia are not stoned-out skaters, hippies or Rainbow Family members.
“The people who get the biggest kick out of it are the baby boomers who are now professionals and remember the good old days,” says O’Leary. “They’re buying the tie dye T-shirts and sending cases to their buddies, just for the fun value.”
Of course, it’s not a matter of “fun value” for everyone. Anti-hemp critics argue that the pro-hemp lobby is really just a front for the legalization of marijuana. By failing to prosecute the consumers of edible hemp, they say, the federal government would be sending a pro-drug message to kids.
Not so, argue hemp industry experts, who claim that hemp is being unfairly singled out in a world where poppy seeds (from which opium and heroin are produced) are legal and fruit beverages with trace amounts of alcohol are sold unregulated. Comments sent to the DEA by the hemp industry point out that the DEA has refused to prosecute bagel makers for baking with poppy seeds that contain comparable amounts of opiates. But the DEA isn’t buying it.
“It’s apples and oranges,” says Glaspy. “From looking at the letter of the law, poppy seeds are excluded, and THC is included.” Additionally, the DEA is determined to prevent those testing positive for THC from claiming a false positive through consuming trace amounts of THC in granola or beer.
But the HIA lawsuit contends that food-induced false positives are virtually impossible, quoting a November/December 2001 issue of the Journal of Analytical Toxicology which tested 15 adults eating hemp food products daily and found “None of the subjects who ingested daily doses of…THC screened positive.”
Issues of fair trade
In an ironic twist for the anti-corporate crowd, hemp advocates are now using a most unlikely tool to further their cause: global trade organizations. The HIA, Kenex (Canada’s largest hemp manufacturer) and six other hemp manufacturers are now suing the U.S. government for violating international trade agreements. The North American Free Trade Agreement requires member countries to treat companies in member nations equitably, and the lawsuit alleges that the DEA “seeks to effectively prevent Kenex from accessing American markets for its hemp food products.”
The lawsuit also alleges violations under the World Trade Organization, which requires member nations to provide risk assessments before banning products and seeking input from U.S. trading partners before implementing the drug law clarification.
Even the Canadian government has filed a brief in support of the lawsuit, contending trade violations. It reads, “There is no evidence that the effective ban on relevant Canadian food products on the U.S. market is based on any risk assessment. Therefore, Canada objects to these measures.”
So will the war on drugs come knocking on the door of the Good Food Store or the Kettlehouse? The DEA isn’t entirely clear.
“I don’t think you’re going to see every DEA agent in the country going around to retail outlets and manufacturers and to beer pubs in Missoula to conduct an enforcement activity,” says Washington, D.C.-based Glaspy.
But regional DEA spokesperson Rogene Waite is more evasive. “What might or might not happen in terms of enforcement? Of course we would never talk about that,” she says. But “the seeds will not be acceptable after the grace period.” Nor would anyone at the DEA comment on how much in additional staff or resources may be spent on pursuing the now illegal edible hemp products.
As of press time, O’Leary was still brewing his popular hemp-based beer. “I said when I was younger that a night in jail might be just the thing to grow this business, but I don’t really want to do that anymore.”