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GetSmart About Drugs - A DEA Resource for Parents

News Release [print friendly page]
April 28, 2003

DEA Statement on THC in
Cannabis Food Products in Light of Ongoing Litigation

On March 21, 2003, the Drug Enforcement Administration (DEA) published two final rules to clarify the legal status of products derived from the cannabis plant, which are referred to by some members of the public as "hemp" products. These rules are currently the subject of litigation in the United States Court of Appeals for the Ninth Circuit in Hemp Industries, et al. v. DEA, No. 03-71366. This statement is being released in response to inquiries from members of the public and the media.

Background - The rules that DEA published in the Federal Register on March 21, 2003 serve two main purposes. The first purpose is to clarify that, under federal law, anything that contains any quantity of tetrahydrocannabinols (THC) is a schedule I controlled substance, except for products that have been approved for medical use by the Food and Drug Administration (FDA) (e.g., Marinol®, which is listed in schedule III) or products that DEA has exempted from control by regulation. THC is an hallucinogenic substance found in the cannabis plant. The second purpose of the rules is to exempt from control cannabis-derived products that do not cause THC to enter the human body, such as paper, rope, clothing, animal feed mixtures, soaps, and shampoos. In this respect, the rules strike a fair balance between allowing the continued use of legitimate industrial products while maintaining the long-standing disallowance under federal law of human consumption of schedule I controlled substances.

It is not clear whether all "hemp" food products contain THC. Some members of the "hemp" industry have applauded the DEA rules and asserted that modern, sound manufacturing methods remove all THC from food products. Other "hemp" food companies claim, however, that their products do contain THC. In light of this disagreement within the "hemp" food business, it important to emphasize, as DEA stated in the rules, that the mere fact that a product has the word "hemp" on the label does not automatically mean that the product contains THC. What matters is whether the product actually contains THC. If the product says "hemp" on the label but contains no THC, it is not a controlled substance and not prohibited under the rules. But if a food product does contain THC, then regardless of the label, the product is prohibited under federal law.

The Ongoing Litigation - Some companies who claim that their food products contain THC have petitioned the United States Court of Appeals for the Ninth Circuit to review the DEA rules to determine whether they are legally proper. As DEA has explained in its briefs filed with the court, the rules are legally proper because they comply fully with the Controlled Substances Act (CSA) and the Administrative Procedure Act (APA), which is the law governing all agency regulations. The rules comport with the CSA because they follow directly from the words used by Congress to address THC when the CSA was enacted in 1970: that any item that contains "any quantity" of THC is a schedule I controlled substance unless DEA has exempted the item from control or listed it in another schedule based on an FDA-approved medical use. The rules comply with the APA because DEA published the rules in proposed form in October 2001, allowed all members of the public to comment, considered each of the comments, and addressed the comments in the text accompanying the final rules.

Although the court has not yet addressed the merits of this appeal, the court did grant the petitioners' request to stay the rules pending a decision by the court on the merits. DEA will abide by the stay for as long as it remains in effect. At the same time, DEA believes that the rules are legally sound and will be upheld by the courts when the merits of the appeal are finally addressed. Any person who manufactures, distributes, or possesses a food product that contains THC should be aware that the court in the ongoing litigation has not yet addressed the merits of the appeal and that DEA may eventually be upheld in clarifying that such conduct is illegal under the CSA and has been so since the law was enacted in 1970.

The full text of the rules can be found on DEA's website, www.dea.gov.

For more information, please contact the DEA Office of Public Affairs at (202) 307-7977.

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