SAN FRANCISCO - Three years after the Bush administration tried to ban food products made with hemp, the government surrendered that front in the war on drugs, attorneys for the hemp industry said Monday.
The Justice Department, these attorneys say, will not challenge a federal appeals court ruling that overturned the ban - a victory for more than 200 companies that make such things as energy bars, waffles, milk-free cheese and veggie burgers with the plant that contains only trace amounts of THC, the key ingredient in marijuana.
Monday night was the deadline for the government to challenge a federal appellate court's February decision to the Supreme Court that the United States cannot ban the domestic sale of hemp foods.
Patrick Goggin, a San Francisco lawyer representing the Hemp Industries Association, said the government had informed the group's legal team that it would let Monday's deadline to appeal expire.
"I think they're choosing their battles. They don't see this as a battle they can win," Goggin said.
Justice Department spokesman Charles Miller declined comment.
The San Francisco-based appeals court said that although the Drug Enforcement Administration has regulatory authority over marijuana and synthetically derived tetrahydrocannobinol, or THC, the agency did not have the authority to ban foods derived from hemp.
The court said it was not possible to get high from products with only trace amounts of the mind-altering chemical.
"They cannot regulate naturally-occuring THC not contained within or derived from marijuana," the appeals court ruled.
Hemp is an industrial plant related to marijuana. Fiber from the plant long has been used to make paper, clothing, rope and other products. Its oil is found in body-care products such as lotion, soap and cosmetics.
Three years ago, the 9th U.S. Circuit Court of Appeals put the law on hold, allowing the industry to continue selling its hemp-food products with hemp produced in Canada and overseas while the legal battle continued.
The trade group Vote Hemp said it would begin lobbying Congress to allow industrial hemp production in the United States, said Alexis Baden-Mayer, the group's government affairs director.
"Americans are looking for healthy alternative sources of omega-3 to supplement their diets due to concerns regarding trace mercury in fish and fish oil supplements," she said.
David Bronner, president of Escondido-based Dr. Bronner's Magic Soaps, which makes hemp products, including an energy bar, said he spent $200,000 funding the legal tussle over the ban.
"This was a complete waste of money," he said. "Finally, I think we're gonna have some explosive growth. Everyone was kinda waiting for the legal climate to clear up."
In October 2001, the DEA first declared that food products containing even trace amounts of THC would be banned under the Controlled Substances Act.
The DEA ordered a halt to the production and distribution of all goods containing THC that were intended for human consumption.
But in March 2002, just before those products were to be pulled from shelves, the 9th Circuit suspended that order to allow it to decide whether federal law could classify hemp food as an illegal controlled substance like heroin.
In April 2002, DEA attorney Daniel Dormont argued for the ban, telling the appeals court here that "there's no way of knowing" whether some food made with hemp could get consumers high.
Hemp food sellers say their products are full of nutrition, not drugs. They say the food contains such a small amount of the active ingredient in marijuana that it's impossible to feel any drug-like effects.
The case is Hemp Industries Association v. Drug Enforcement Administration, 03-71366.
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