Department Legal Opinion
on the Legal Status of Hemp Seed Products
for Human Consumption
Below is the text of a
letter that was sent to DEA Administrator Donnie Marshall
on March 23, 2000 outlining the Justice Department's
legal opinion on the legal status of hemp seed and oil
based products intended for human consumption. An identical
letter was also sent by the Justice Department to U.S.
Customs Commissioner Raymond Kelly on the day before.
The letter was obtained under the Freedom of Information
Act (FOIA), and a copy of the letter to Commissioner
Kelly is available as a PDF
file (787k). Bold text in the letter below is emphasis
added by Vote Hemp.
U.S. Department of Justice
Washington, D.C. 20036
March 23, 2000
The Honorable Donnie Marshall
Drug Enforcement Administration
Washington, DC 20537
Dear Acting Administrator Marshall:
You have asked whether we can restrict
the importation of products that contain what is commonly
referred to as "hemp." These products have
been routinely imported into the United States for use
as birdseed and in the manufacture of cloth and paper.
In addition, a wide variety of products not intended
for human consumption are also manufactured from hemp
fiber and seed oil, including clothing, shoes and accessories
such as wrist bands and necklaces, cosmetics, food products,
and skin and hair products.
Over the past several years, however,
we have received information that sterilized cannabis
seed has been imported not solely for birdseed, but
for the manufacture of health food products intended
for human consumption, most commonly as dietary or nutritional
supplements. Many of these products have tested positive
for the presence of small amounts of naturally-occurring
tetrahydrocannabinol (THC). I have been informed
that those hemp products intended for human consumption
have THC at levels too low to trigger a psychoactive
effect are not purchased, sold or marketed with the
intent of having a psychoactive effect.
Under the Controlled Substances Act,
"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" are excluded from the definition
of marihuana, 21 U.S.C. §802 (16). Therefore,
products derived from this portion of the cannabis plant
commonly referred to as "hemp" are explicitly
excluded from regulation under the Controlled Substance
It has been suggested that "hemp"
products containing THC are subject to regulation as
a Schedule I drug under 21 U.S.C. §812 (c) (17).
However, 21 U.S.C. (c) (17) refers only to synthetic
THC, not the THC naturally occurring within marihuana.
The pertinent regulation, 21 C.F.R. §1308.11 (d)
(27), defines THC as "synthetic equivalents
of the substances contained in the plant, or in the
resinous extractives of Cannabis, sp. and/or synthetic
substances, derivatives, and their isomers with similar
chemical structure and pharmacological activity ..."
(emphasis added). Several courts of appeal have also
held that the THC referred to in the statute is synthetic
THC: United States v. McMahon, 861 F.2d
8, 10 (1st Cir. 1988) and United States v. Wuco,
535 F.2d 1200, 1202 (9th Cir. 1976). No courts have
held to the contrary, and we consider this well-settled
law. Thus, it appears we are not able to regulate or
prohibit the importation of "hemp" products
based on any residual or trace content of naturally-occurring
Finally, we have considered the so-called
"marihuana derivatives" argument. Courts have
held, for example, that hashish and other products are
Schedule I controlled substances notwithstanding the
fact that they are not specifically listed within the
statutory definition of marihuana. Courts have so held
because of the obvious Congressional intent to criminalize
marihuana products derived from the marihuana plant
which have the same narcotic effects as marihuana itself.
With "hemp" by contrast, Congress has made
its intent known by specifically excluding these products
from its definition of marihuana.
While the Department's overall policy
towards the cultivation of cannabis for the purpose
of "hemp" production is currently undergoing
review by the Attorney General, it is our legal opinion
that we presently lack the authority to prohibit the
importation of "hemp" products, absent
regulatory language that interprets, or legislative
action to modify, the definition of marihuana contained
in 21 U.S.C. §802 (16).
Please contact me if you have any questions.
John Roth, Chief
Narcotic and Dangerous Drug Section