On Feb. 6, 2002, the U.S. Drug Enforcement Agency (DEA) classified edible hemp as an illegal Schedule I controlled substance—a categorization that put the non-intoxicating plant in the same category with heroin.
But a recent ruling by the Ninth U.S. Circuit Court of Appeals, which covers Montana, has sucked some wind out of that move. In a 2-1 decision, San Franciscio appeals court Justice Betty Fletcher wrote, “Because the DEA rule is inconsistent with the THC regulation at the time of promulgation, it is a procedurally invalid legislative rule…we declare the rule to be invalid.”
“If they’d ruled in favor of the DEA, we’d be done with our hemp beer,” says Tim O’Leary, owner of Missoula’s Kettlehouse Brewery and proud brewer of Bongwater Ale.
O’Leary chuckles at the thought of a Kettlehouse “drug bust.” “Our hemp seed has been tested, and it has less than four parts per million of THC. A joint has three parts per hundred…so to get the equivalent amount of THC as a joint, you’d have to drink about 8,500 pints.”
O’Leary says that hemp advocates attempting to separate themselves from marijuana legalization supporters have an uphill battle.
“The general public gets confused and thinks it’s all one and the same, so there’s a lot of education that’s needed.”
Like O’Leary, the Good Food Store was pleased not to have to pull hemp products like granola and energy bars, according to bulk purchaser Eddie Johnson.
However, Rogene Waite of the DEA’s public affairs office warns small businesses not to count their high-protein seeds before they’ve grown; her agency plans an appeal.
“We would basically be doing a rule-making, and this is the procedure that we have been charged, by Congress, to do,” she says.
The Hemp Industries Association (HIA) argues that such rule-making is outside of the DEA’s jurisdiction. The Ninth has agreed, but the saga will likely continue. As it unfolds, however, consumers can feel free to enjoy a pint of Bongwater Ale with a hemp energy bar on the side, for dipping.