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On Feb. 6, it will be illegal to sell or import hemp-containing foods, under a new rule of the U.S. Drug Enforcement Administration (DEA). The DEA says it is interpreting and enforcing an existing rule, which doesn’t require formal rule-making procedures. But critics charge that the agency is simultaneously soliciting comments for a new rule with the same wording and effect. It published the rule in the Federal Register Oct. 9. The foods are being banned for import or sale because they contain traces of THC, the primary active constituent of marijuana. DEA Administrator Asa Hutchinson has also said that “many Americans do not know that hemp and marijuana are both parts of the same plant and that hemp cannot be produced without producing marijuana,” according to a DEA statement. Several hemp food products manufacturers and the Hemp Industry Association, their trade group, have asked the 9th U.S. Circuit Court of Appeals for an emergency stay of the enforcement of the rule. They also seek formal review of the rule (66 Fed. Reg. 51530 et. seq.). Federal appeals courts are the designated forum for challenging agency rule-making actions. The DEA has given the manufacturers and retailers of consumable hemp products until Feb. 6 to dispose of their inventory — a situation which they assert will ruin their businesses. They say that their products are no more harmful than poppy seed bagels, which contain tiny trace amounts of opiate compounds, or fruit juices, which contain traces of alcohol. Products on the market that the DEA says are affected by the action include some beers, cheeses, coffees, corn chips, energy drinks, flours, ice creams, snack bars, salad oils, sodas and veggie burgers. Manufacturers say that there is no measurable THC content in these foods under tests available when Congress passed the Controlled Substances Act. The suppliers say that hemp is used in food products because the seeds are a high-quality source of protein, and the hemp seed oil contains a variety of heart-healthy essential fatty acids not found in other food products. The DEA describes the rule as an interpretation of that statute and of DEA regulations, which under the Administrative Procedures Act (APA), require no formal rule-making procedures. VERDICT BEFORE TRIAL? “It’s like the judge announcing the verdict before the trial,” says John H. Young of Washington, D.C.’s Sandler Young, representing a group of U.S. and Canadian companies making and selling hemp food products as petitioners with his partner Joseph E. Sandler and solo practitioner Patrick Goggin as local counsel. Sandler says that under the APA statute, the rule is clearly substantive in nature, a categorization that requires a formal rule-making hearing, or else notice to the public and an opportunity for comment. Petitioners charge that the DEA is avoiding the proper regulatory procedures by issuing the dual rule. A DEA spokesperson declined to comment, deferring to the press advisory statement posted at the DEA Web site, at www.dea.gov. The comment period for the immediate proposed rule ends Dec. 10. A 1998 seizure of hemp birdseed led to more than two years of extensive interagency tussles, in which certain factions argued for conformity with international trade standards on hemp, and other agencies insisted on a zero threshold level. In November 2000, DEA announced its plans to publish more restrictive rules. Those rules, published Oct. 9, ban the sale or importation of hemp products that “enter the human body” because the DEA says the products contain THC traces. Sandler says Congress never intended to apply bans on hemp products to microscopic traces detectable by modern analytical methods. He noted that poppy seeds are exempted from the Controlled Substances Act even though they contain trace opiates, and that fruit juice has trace amounts of natural alcohol through fermentation but is not subject to liquor laws. Apart from trying to stop imposition of the DEA rule, David C. Frankel, a San Francisco attorney and Hemp Industries Association board member, said the trade association members are “looking to work with DEA to set up protocols that do not interfere with legitimate law enforcement without forcing our products off the shelves.” The Family Research Council, a Washington, D.C.-based conservative advocacy organization, has submitted papers in support of the DEA rules. Robert Maginnis, the council’s vice president for policy, said that the hemp issue is being used to camouflage a marijuana decriminalization legalization agenda, and that there are ample substitutes for hemp products. Maginnis says that legalization of hemp products sends a pro-drug message to children. On Nov. 8, Rose A. Briceno, and Wayne Raabe, senior trial attorneys with the DOJ’s Narcotic and Dangerous Drug Section, filed an opposition motion to the request for an emergency stay. Petitioners filed a reply to the opposition brief Nov. 15.

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