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We have heard the benefits touted of toasted hemp seeds, which are rich in amino acids, and how they make a delicious and healthy addition to a salad. So for those living in states where marijuana and products derived from it remains illegal, or even where its legalized for limited medicinal purposes, you may be wondering how these hemp seeds manage to make it to our supermarket shelves and not other hemp consumables?
The answer is simple. The seeds are non-viable and incapable of germination, which means no new plants can be grown from them as they are for all intents and purposes “sterilized.” The seeds also contain zero THC which is the determining factor that makes a hemp product intended for human consumption eligible for importation in to the US or not.
Products containing THC are considered a Schedule I Controlled Substance and there is no minimum quantity of THC that is permitted in an imported product unless it has either been given the status of an exempted article, or permission to import has been obtained.
It should be noted that even where a hemp product contains 0.3% or less of THC, this does not create an automatic approval for an edible import containing THC to enter the U.S., nor for any farmer to cultivate hemp so long as its THC levels are not above 0.3%, as both activities require registering and obtaining authorization from the U.S. Drug Enforcement Administration (DEA) in order to lawfully engage in them.
In an effort to expand the use of hemp with a THC level of 0.3% or less, the Hemp Industries Association (HIA) together with the Kentucky Hemp Industry Council submitted a petition in June 2016 for the removal of “industrial hemp” from the list of controlled substances, which is a term of art narrowly defined under a law addressing the legitimacy of industrial hemp research. It is defined as “the plant Cannabis Sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” This had last been attempted by HIA in 1998, the result for which, was a negative decision nearly 3 years later at the end of 2000.
Not more than 6 weeks after this recent petition was made by HIA, in August 2016 the DEA denied a separate petition initiated by another party to reschedule marijuana under the auspices of a medical marijuana argument.
Needless to say, with the rapidly evolving state level codification of relatively open market cannabis laws, much of which is in direct contradiction with the DEA’s position of marijuana being a controlled substance, those aiming to foster economic opportunities from commercial use of the plant are left in a precarious haze of regulatory uncertainty due to conflicting laws. Even with the narrow allowance the DEA acknowledges in its Statement of Principles on Industrial Hemp published on August 12, 2016, given its statement and findings on maintaining marijuana in Schedule I of the Controlled Substances Act, also published on August 12, 2016, it is pretty evident that the DEA does not intend to expand its definition of marijuana to meet the liberalized state laws which permit marijuana cultivation and the production of goods from such a yield.
That being the case, I submit we can anticipate that authorized activities involving use of the plant will remain unclear for the near future and recommend that if you want to play it safe, that authorizations be obtained by the DEA for hemp related commercial activities where it is not evident that it falls into one of DEA’s recognized permissible activities. For more information on these or other hemp laws, you may contact the author of this article, Deanna Clark-Esposito, Esq. at deanna@clarkespositolaw.com
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