Court Overturns DEA's Ban in Hemp FoodsIn 2004, the Ninth Circuit Court of Appeals ruled that the DEA could not prohibit food companies from using nutritious hemp in their products, even though hemp plants naturally contain trace amounts of delta-9-tetrahydrocannabinol, or THC, the main psychoactive substance in its close relative marijuana. It was a major victory not only for the Hemp Industries Association and advocates of hemp foods, but also against the DEA’s ongoing efforts to totally ban marijuana and all related sources of THC. Court Judge Betty Fletcher concluded that the DEA “cannot regulate naturally-occurring THC not contained within or derived from marijuana — i.e. non-psychoactive hemp products — because non-psychoactive hemp is not included in Schedule I. The DEA has no authority to regulate drugs that are not scheduled” (Fletcher 2004 1801, italics in original).

The DEA’s attempt to prohibit public consumption of hemp is an outgrowth of a basic misunderstanding of the relationship between hemp and marijuana in which the two plants have been falsely equated. When marijuana was first cast as a dangerous drug that led people to immoral and criminal behavior – a portrait of marijuana championed by William Randolph Hearst in 1937 (French and Manzanárez 2004), the public made little distinction between marijuana and its phenotypically similar but non-psychoactive variant, hemp. It is a confusion that has persisted to this day, fueled by the difficulty of telling hemp and marijuana apart: the two plants are actually classified as related variants of the same species, Cannabis sativa (West 1998).

Biologists currently recognize three species of marijuana plant: Cannabis ruderalis, the South Asian Cannabis indica, and the cultivated North American Cannabis sativa. One problem with distinguishing marijuana from hemp is that there is no convenient species barrier between these two variants of Cannabis sativa, meaning they can interbreed with each other to produce viable offspring (West 1998). However, the biochemical profile of the hemp and marijuana variants of C. sativa suggest deep pharmacological differences in their chemical makeup, which justify placing marijuana and hemp in different categories when it comes to classification as a psychoactive herb versus a non-psychoactive food.

Scientists will actually classify a specific Cannabis sativa plant as either hemp or marijuana based on its ratio of two different types of naturally occurring cannabinoids: delta-9-tetrahydrocannabinol (or THC), and cannabidiol (CBD) (West 1998). While marijuana flowering tops are 3 to 20 percent THC in dry weight, hemp contains little THC and often a higher ratio of CBD, a chemical which has been shown in clinical studies “to block the effect of THC in the nervous system” (West 1998). Hemp researcher David P. West has called hemp the “anti-marijuana” for this reason, noting that CBD can cancel out the psychoactive effects of THC when both chemicals are present in a C. sativa plant in as little as a 1:1 ratio (West 1998).

Part of the current confusion results from the DEA using the words hemp and marijuana interchangeably since the 1930’s to refer to all species of Cannabis, even though the agency legally recognizes the differences between the two cultivars. A comparable agricultural product is the bread seed poppy, which, like its illegal cousin the opium poppy, does contain trace amounts of opiates – but not nearly enough to have a psychoactive effect.

In their argument to ban hemp foods, the DEA claimed that hemp products interfered with urinalysis tests by giving off false-positive tests for the presence of THC. (Fletcher 2004). However, while small amounts of THC can stick to hemp when it is harvested, further processing of hemp to extract the seeds, powder or oil is usually sufficient to wash off these trace amounts. (West 1998). Furthermore, although “the very high sensitivity of drug-testing urinalysis procedures has detected THC in some people who consume hemp oils… this is no more reason to outlaw hemp oils than is the fact that people can test positive for opioids after eating bagels or poppy seed cake a reason to outlaw… foods [containing poppy seeds]” (West 1998).

Despite the biological evidence for the chemical differences between hemp and marijuana, myths about the two varieties of C. sativa and their relationship to each other have persisted and contributed to the DEA’s defeated effort to have hemp banned for human consumption. Three of the most persistent myths about hemp used to argue for its illegality are that it can be smoked as a substitute for marijuana; that hemp growers could camouflage marijuana plants in their hemp fields to avoid discovery; and that hemp advocates would use hemp legalization as a backdoor to legalizing marijuana. Let’s examine these long-standing myths in greater detail:

First of all, does smoking hemp get you high? The shortest answer to that is no. Because of hemp’s high concentration of CBD to THC, smoking a joint made of hemp will have no notable effects on its own. In fact, smoking hemp could actually be the quickest way to cancel out the effects of psychoactive marijuana, as the CBD nullifies the effects of THC in the brain and the peripheral nervous system (West 1998). In light of this scientific evidence, the idea of someone smoking hemp to generate a psychoactive effect becomes patently ridiculous; anyone who has the mistaken assumption that hemp can be smoked as a marijuana substitute will be quickly disabused of the notion the first time they try it out.

A second common fallacy is that hemp growers will use their hemp fields as a visual screen to hide marijuana growing operations by raising the marijuana plants among their visually identical but legal hemp plants. The problems that such a method of hiding marijuana would create for growers are two-fold: the first is that marijuana and hemp are grown using different methods and harvested at different times (West 1998), meaning that combining them in the same field would drastically reduce the basic viability of both crops – not to mention make it almost impossible for the grower to distinguish the variants when it came time to harvest them.

The second problem stems from the fundamental differences in chemical composition between the hemp and marijuana variants of Cannabis sativa. Because there is no distinct species barrier between these two variants, hemp and marijuana can cross-pollinate each other, much like field corn and sweet corn, a more innocuous example that highlights the problem with planting related variants of a species near each other. Sweet corn is farmed for its high sugar content, a trait not present in field corn, which is a related variant mostly used for animal feed. However, if the two crops are planted in close proximity (even as much as a mile away), the two variants of corn will often interbreed. In cases where interbreeding occurs, the variety of corn produced is often less sweet because the field corn variant (which has a lower sugar content) is dominant (West 1998). Thus, the result is a corn hybrid that is less sweet and is unmarketable as sweet corn.

The same problem arises when hemp and marijuana are planted in close proximity to one another: experiments with the two strains of C. sativa have shown that hemp and marijuana interbreed readily and that the resulting hybrid more closely resembles hemp in chemical composition, with a high ratio of CBD to THC present in the leaves and flowers of hemp/marijuana hybrids (West 1998). In other words, growing hemp and marijuana in the same field results in marijuana plants with a diluted THC content that makes them impossible to sell for recreational or medicinal purposes because they will have no psychoactive effect when consumed.

The third and most complex argument in favor of prohibiting hemp concerns not so much the plant itself as the people who advocate its legal use. Advocates of banning hemp often argue that non-psychoactive hemp advocates want to legalize the plant as a “backdoor” to legalize psychoactive hemp, i.e. marijuana. While many hemp growers do support legalizing and regulating marijuana (West 1998), they recognize that these are two different issues applied to two different plants. Other players are industrial hemp growers who treat hemp as a completely different commercial crop unrelated to psychoactive Cannabis sativa in its uses and commercial value (West 1998).

The argument that persuading the government to legalize hemp would be a way to soften politicians up so they would consider legalizing marijuana suffers from the same error as the two arguments above: that of equating the hemp issue with the marijuana issue. Just as hemp and marijuana cannot be equated biologically because of the two cultivars’ opposed ratios of THC to CBD, both the U.S. government and advocates for the growing of hemp and/or marijuana recognize that the two plants must be treated differently under the law.

Instead of enfolding hemp in the debate, most advocates of legalizing marijuana bring up psychoactive C. sativa’s medical potential as an analgesic, nausea control drug, and anti-epileptic as a reason to legalize marijuana. Non-governmental organizations like The Marijuana Policy Project (MPP) have led the charge in make medical marijuana a viable and legal option for sick people for whom traditional prescriptions drugs are ineffective for the management of chronic pain. Eventually the MPP would like to see the legalization, regulation, and taxation of non-medical, or recreational, marijuana across all fifty States: “MPP and MPP Foundation envision a world where marijuana is legally regulated similar to alcohol, marijuana education is honest and realistic, and treatment for problem marijuana users is non-coercive and geared toward reducing harm” (Vision Statement, 2008). Nowhere on its website does MPP mention hemp in their argument for legalizing marijuana. The reason for this is simply that hemp and its edible and commercial products are not comparable to marijuana and its commercial products, and never have been.

However, the widespread recognition of this essential difference has been a long time coming. Since the 1860s, both marijuana and hemp were grown in the United States as commercial crops, and were treated and taxed differently by the U.S. government: hemp as a plant primarily grown for fiber to make rope, and marijuana as a medicine commonly available in drug stores (French and Manzanárez 2004). When hemp and marijuana first started becoming entangled in the eyes of the public (and later policy makers), it was because of a misinformation campaign by commercial interests threatened by the impending commercial success, not of marijuana, but of hemp.

In the 1930’s a new invention called the decorticator machine made it possible for the first time to efficiently make paper out of hemp pulp (French and Manzanárez 2004). Long used to make strong rope, hemp was now becoming a contender to greatly supplement or replace paper derived from wood pulp, and hemp oil also showed great promise as a cheap bio-fuel that would have undercut petroleum (Wolfe 2009). The 1930’s diversification of the hemp industry was starting to become a threat to some of America’s most powerful and wealthy citizens, among them The DuPont family, U.S. Secretary of State Andrew Mellon (the wealthiest man in America at that time), and publisher and timber magnate William Randolph Hearst (French and Manzanárez 2004; Wolfe 2009). Hearst’s family held vast tracts of timber on which he had built a thriving pulp and paper industry; the invention of a method for converting hemp pulp to paper threatened to undercut Hearst’s wood-based paper industry. Hearst also had close ties to Pierre DuPont and the DuPont corporation, which held the patent to the sulfuric acid process for making paper out of wood pulp (Wolfe 2009). Concurrently, in the 1930’s the DuPont corporation was trying to market its newest material, nylon, as a modern replacement for natural fiber ropes, a project for which it received backing from Andrew Mellon, who was tied to the DuPont corporation through marriage. The commercial success of nylon and wood pulp paper – and thus the financial success of the parties concerned – depended upon the commercial failure of hemp (French and Manzanárez 2004). (Read this article for another viewpoint on this fascinating topic)

Hemp was becoming too commercially profitable for its own good. Using his influence as a newspaper publisher and editor, Hearst began campaigning against the use of marijuana, painting the hemp relative as a dangerous drug used primarily by non-white foreigners and criminal elements in society. Hearst argued that the use of marijuana fueled violent crimes that were mostly perpetrated by non-white groups, “spreading stories of rape, murder and violence by ‘Negroes, Mexicans and Orientals’, all under the influence of the evil drug marijuana” (French and Manzanárez 2004, 129).

In light of Hearst’s connection to anti-hemp commercial interests, scholars have argued cogently that the goal of his anti-marijuana campaign was to destroy the hemp industry. Despite hemp and marijuana being two distinct cultivars, in the 1930’s there was no reliable way to test for their chemical differences, and the visually identical variants of C. sativa were often called hemp or marijuana interchangeably and distinguished mostly by what parts of the plants were sold commercially (West 1998). Therefore, when Hearst slammed marijuana, both it and its cousin hemp were easily demonized. The Marijuana Tax Act, which took effect in 1937 and was aimed at taxing the sale of marijuana, also restricted the handling of both hemp and marijuana to the extent that it almost ended the hemp industry.

Although the restrictions imposed by the Marijuana Tax Act made business difficult for hemp growers, it did not actually make hemp illegal. The Tax Act was directed primarily at the parts of the plant harvested for human consumption, such as the flowering tops, and exempted parts of the hemp plant used to produce fiber such as the mature stalks and seeds, and any part of the plant incapable of germination (West 1998). After Japan conquered the Philippines in 1942 as part of World War Two, the US. government briefly encouraged hemp farmers to greater production in order to provide rope for the war effort (West 1998). Despite the best efforts of the America’s business elite, the government continued to legally distinguish hemp and marijuana as two separate crops.

It was only in 1970, with the passage of the Comprehensive Drug Abuse Prevention and Control Act, that hemp was categorically lumped in with marijuana. In seeking to regulate or ban narcotics in the Unites States, this law used much the same wording toward hemp and marijuana as had the Marijuana Tax Act, with the key difference that the 1970 Act also set a zero-tolerance policy toward the presence of THC in products for human consumption (Wolfe 2009). With THC itself made illegal, regardless of its level of concentration or the presence of nullifying cannabinoids such as CBD in the same plant, the legality of non-psychoactive hemp was called into question when marijuana was banned (Wolfe 2009).

Restrictive policies toward marijuana such as the 1970 Drug Abuse Prevention Act are what made the DEA’s attempt to ban hemp foods possible. Fortunately, in the 2000s there have been some encouraging developments at the state level to legalize and regulate marijuana for medical use: as of late 2011, 16 states and the District of Columbia have legalized marijuana for medical use with a valid ID of authorization and proof of residency in the state ( 2011). Several states have also decriminalized possession of non-medical (recreational) marijuana in small amounts, even though marijuana remains illegal at a federal level (Wikipedia 2011). The Ninth Circuit Court’s favorable ruling on hemp foods joins these developments in offering hope to advocates of both hemp and marijuana that the government will eventually recognize the industrial, nutritional, and medical value of both of these important cultivars.



“16 Medical Marijuana States and D.C.: Laws, Fees, and Possession Limits”,, last modified September 19th, 2011,

Fletcher, Betty B. “Hemp Industries Association v. Drug Enforcement Agency Final Opinion”, Ninth Circuit Court Final Ruling, February 6th, 2004. 

French, Laurence, and Magdaleno Manzanárez. NAFTA and Neocolonialism: Comparative Criminal, Human, and Social Justice. University Press of America, 2004.  

“Mission Statement”, Marijuana Policy Project. org, last modified December 1st, 2008,

“Places that have decriminalized non-medical cannabis in the United States”,, last modified December 16th, 2011, 

West, David P. “Hemp and Marijuana: Myths and Realities”, North American Industrial Hemp Council report, 1998.

Wolfe, David. Superfoods: The Food and Medicine of the Future. North Atlantic Books, 2009.