to hemp policy & regulations
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 exclude from the definition of marihuana.
21 U.S.C. S802
(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 Act.
It has been suggested that "hemp" products containing THC are subject to
regulation under 21 U.S.C. S812©(17). However, 21 U.S.C.©(17) refers only
to synthetic THC, not the THC naturally occurring within marijuana. The
pertinent regulation, 21 C.F.R. S1308.11(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
(Emphasis added). Several courts of appeal have also held that the THC
referred to in the statute is synthetic THC. United States vs.McMahop
861f.2d 8,10 (1st Cir. 1988); United States v.
Ruco, 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 THC.
Finally, we have considered the so-called "marijuana derivatives"
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 marijuana. Courts
have so held because of the obvious Congressional intent to criminalize
marijuana products derived from the marijuana plant which have the same
narcotic effects as marijuana itself. With "hemp" by contrast, Congress
has made its intent known by specifically excluding these products from its
definition of marijuana.
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. S802(16)
Please contact me if you have any questions.
John Roth, Chief
Narcotic & Dangerous Drug Section