Update on Seizure and DEA Interpretation

October 14,1999
From: Don Wirtshafter

For those of you who have not yet heard, the hundreds of businesses who have staked their future on industrial hemp are going through a crisis. The Drug Enforcement Administration has changed their interpretation of the Controlled Substances Act to include many hemp products, especially those made of the nutritious seeds. Kenex, Inc., the most established Canadian producer had a truc  of birdseed seized at the border and has been ordered to recall 17 loads that were already shipped to the United States. Many businesses, including my own, have received a Summons from Customs ordering us to disclose all of our imports of hemp. 

According to the DEAís press release of October 6, 1999: "Recently, DEA and other federal agencies have become aware that sterilized cannabis seed has been imported into the United States for use in food products for human consumption. Furthermore, some of that seed, and products made from the seed, may be contaminated with THC. Under federal law, THC is a schedule I controlled substance. Therefore, any product containing any amount of THC can only be imported into the United States by a company that is appropriately registered with DEA."

Arguments aside that organic THC is not Schedule I or that it takes years to get a Schedule I license, the blockade at the border threatens everything the hempsters have been working for, our movement, our industry and our livelihoods.

I made some progress in Washington, D.C. the week of October 4-8. My original purpose was to attend the CATO Instituteís Beyond the Drug War Seminar with such notables as free thinking Governor Gary Johnson of New Mexico and the closed minded prohibitionist Former Attorney General of California, Dan Lungren. I also got invited to attend a private dinner with Gov. Johnson organized by the Association of Drug Reform Organizations. These events gave me an opportunity to discuss the present situation in the hemp industry with the movers and shakers of the drug reform movement. Lots of help was promised to us by these leaders. I was also able to get some professional help needed to oppose a report on the "Hazards of THC" that is scheduled to be issued in draft form soon by Health Canada.

I used my presence in Washington to try to spark some movement in the logjam that Kenex and the industry faces. I spent a morning discussing the situation with Bruce Schwartz and Jeff Klein, the Washington-based attorneys for Kenex. We agreed on most aspects of the case except two. They insisted that the debate be over birdseed as that was something that a court could easily understand. I was much more into defending the foods aspect of the case and pressed the need for resolve of the issue before the upcoming Natural Products Expo. They disagreed with my characterization that this case was about the DEA protecting the urine testing industry and its invasion on individual privacy. The lawyers insisted that the public debate be restricted to birdseed. I also met with Ned Daly, Leda Huta and John Richard of Ralph Naderís organization to discuss the implications of the recent actions on our outstanding petition for rescheduling industrial hemp with the DEA and the Department of Agriculture.

My best approach was through my local congressman, Ted Strickland, a very competent, caring Democrat. Ted Strickand, a licensed psychologist, was extremely busy with the last minute compromises in the health care bill. He had little time to say anything but "hello" as passed me over to his Legislative Assistant, Brandy Tomhave. Brandy, a former public defender now working full-time on Cong. Stricklandís staff, deserves a letter of thanks from all hempsters for her timely intervention into our case. 

Brandy took the time to listen to the situation and then went to work calling the congressional liaisons from U.S. Customs and the DEA. Predictably, the DEA deferred responsibility for the blockade at the border. They blamed it on Customs and said there was no change of policy in the DEA. Armed with the DEAís own press release from the previous week acknowledging a change in interpretation of the Controlled Substances Act to include legal hemp products, Brandy did not accept that for an answer and pressed for a real response from the DEA liaison. Customs was more cooperative and promised her an answer as quickly as possible. Brandy then asked me to stay another day so she could arrange appointments for me with the responsible agencies. 

The next morning, Thursday, October 7th, Brandy again made calls to the various agencies. Eventually we got good news from the congressional liaison at U.S. Customs. She said the DEA had relented and agreed to release the shipment of Kenex grown birdseed that the DEA ordered held at the Detroit border over a month ago. I was given the name and phone number of the Port Director in Detroit as well as his supervisor in case I had any trouble. I got the pleasure of calling Jean Laprise of Kenex and telling him the news. Using the congressmanís phone I called the attorneys and David Frankel to discuss the situation. We agreed that we needed to get something in writing from the DEA but that release of the seized hempseed came first. I called our customer to assure that they still wanted the 44,000 pound shipment. I left the office ecstatic that the situation was close to over and headed on the Metro out to the suburbs where I had parked my pickup truck for the six hour ride home.

As I headed for home, my new cell phone got a lot of use as the agencies worked to consolidate their positions . No sooner had I emerged from the Metro then I got a call from Brandy Tomhave. She told that a supervisor in Customs apologetically told her that he had to insist that the DEA put their policy in writing before Customs would release the shipment. I agreed that an official letter would help prevent future problems of this nature and asked Brandy to keep the pressure on the DEA.

More phone calls made it apparent that very little had been resolved. Bruce Schwartz, Kenexís lawyer, called saying the DEA told him they only meant "birdseed" in their decision. Food products and sterilized seed intended for food products were still subject to seizure at the border. This position leaves the hemp industry stranded. The DEA finally admitted it was acting on concerns over the allegations that legal hemp products could affect the outcome of the commonly employed urine tests. Just what I had told the lawyers was the motive behind this the previous day.

There is no possibility that any product that meets Canadaís strict regulations for industrial hemp could ever affect urine tests. Canada set a maximum limit of 10 parts per million for any hemp product. Even if someoneís entire diet consisted of food at this level, it could NOT be detected in the highly accurate urine tests used by the military, by employers and by the judicial system to monitor for drug use. Canada went through rulemaking where these issues were discussed in detail. The decision of that sovereign must be respected under the North American Free Trade Association (NAFTA) Treaty.

The Research Triangle Institute was scheduled to do a series of human trials on this issue for SAMHSA, the federal agency that accredits urine testing labs. The purpose was to prove there was an impossibility that any imaginable consumption of commercial hemp products could affect urine tests. Unfortunately, I understand that Research Triangle has not been able to start their human research due to holdups with paperwork by the DEA.

The issue is similar to poppy seeds affecting urine tests providing a false positive for heroin consumption. The urine testing industry has learned to deal with this issue by requiring a medical examination of any failed employee who claims poppy seeds as an excuse. Nobody has ever called for a ban on poppy seed imports.  

So now we are in a situation where the DEA is admitting they  have no jurisdiction over the sterilized seed of hemp but that they will assume jurisdiction over the sterilized seed of hemp when they are used for food purposes? Under what statutory authorization I ask? The DEA is clearly on thin ice. It is up to us to break through their weak spots and put them in deep water. 

To add insult to injury, one more call came just as I was approaching home. Bruce Schwartz called to inform me that the DEA had looked intothe situation and they were willing to release the subject load of birdseed, but only if it was returned to Canada. They said that since their investigation revealed that the seized load was intended for human food, they would not admit the shipment. Actually, the customer for this load is one of the largest bird seed companies in the country. The broker who this was being sold through is a two billion dollar per year commodities broker. I was just a sales agent in this particular load. The shipment was headed directly to the warehouse that has packed commercial birdseed for many years. Just because I was the one who went to my Congressman for help should not mean a thing to the DEA.

So, the situation is pretty clear. Contrary to the assertions of some in the industry, this is not about Kenex. Kenex did nothing to bring this on themselves. This is a policy change by the DEA that has been coming for months. The issue is not the use of hemp for food but the use of hemp foods as an excuse for failing urine tests. To support their corrupt drug testing industry, their answer is to attack hemp and keep it off the market. Every company that wants to do anything with hemp seed is at great risk, criminally, civilly and economically as long as this policy is in place.

What at first felt like a real victory turned into a small, micro win, leaving the most important issues on the table. We still have to comply with the Customs subpoenas that we received. Product recalls are still in effect. Others that try to import from places other than Kenex are taking a huge chance of being caught. We still canít assure customers that they are not subject to legal hassles and product recalls. It took ten years for us to get the larger food companies interested in hemp. The paranoia generated by the DEAís action will set us back many years. We are sunk if we canít change the situation soon, especially before the Natural Products Expo.

But there is a lesson here. Congressional pressure works wonders. It is really important for any business at risk here to get on the horn to their congressman and senators. Each has area representatives who visit post offices and public buildings on a regular route through their districts. Call up the local office and talk to any aid that you can. Find out the schedule of the district visits and go armed with as much information as you can. Visit Washington if you can, but since this is impractical for most, letters and personal visits emphasizing the potential harm to your business is the key.

Many elected officials will not give as good of service as my congressman gave me, but if we can raise a crescendo of calls from congressional staff to these various agencies, they will react. The alternative is a long, drawn-out court battle. We need a quick solution here and our elected representatives are our best weapon. Those of you directly in the hemp business have a special case that your Congressman can relate to -- jobs. It is especially important to you to emphasize the harm this does to your business and the employment that could be lost if the DEA does not quickly reverse its position. The Hemp Industries Association has posted several sample letters for you to modify and send in at There is also a link to where Americans can find the names and addresses of their state and federal legislators.

Citizens of Canada have a different path toward a solution. Canadians should see the DEA blocking the border as a tremendous affront to their country. Is the DEA accusing Canada of harboring and even encouraging drug production? What happened to Free Trade that we heard was going to be good for business. The Canadian embassy in Washington has already sent a letter protesting this action. More pressure on Ottawa will strengthen their resolve to push for a solution here. This too can be done through lobbying your local representatives.

Five days later there is still nothing to report. The load still has not been released. The Natural Products Expo is only a week away and our hands are tied.

I will be happy to answer any questions that you may have. These are best sent by email as I am almost continuously on the road.

Don Wirtshafter, Ohio Hempery Inc.
Tel: (740)662-4367 Fax: (740)662-6446 Email: