Last updated September 27, 2004.

Foods containing hemp will remain legal in the United States, as their manufacturers have won a three-year court battle against the Drug Enforcement Administration (DEA). The DEA has decided not to appeal the latest ruling to the United States Supreme Court, so the agency's proposed hemp foods ban will not stand.

On October 9, 2001, the Drug Enforcement Administration (DEA) published three rules - an Interpretive Rule, a Proposed Rule, and an Interim Rule - in the Federal Register. These new rules were designed to make it clear that any product, natural and synthetic, that contains THC is within the umbrella of a controlled substance. THC, tetrahydrocannabinols, is the psychoactive chemical found in marijuana.

The DEA's proposed regulations would have made illegal a significant portion of the growing hemp industry. The new interpretation was designed to close a loophole in the Controlled Substances Act (CSA) that allowed the hemp industry to sell and market consumable products that contain trace amounts of THC. The present language of the CSA imparts an interpretation conflict because Congress's definition of marijuana excludes portions of the cannabis plant. The hemp industry argues that it is these protected portions of the plant that are present in consumer products. Under the new rules, dozens of pretzels and snack chips, protein bars, and other products containing hemp seed or made using hemp seed oil would have been prohibited.

Because trace amounts of THC in hemp seed is non-psychoactive and insignificant, the U.S. Congress exempted non-viable hemp seed and oil from control under the CSA, just as poppy seeds are exempt even though they contain trace opiates otherwise subject to control.

On October 19, 2001, the Hemp Industries Association and seven other petitioners filed an Urgent Motion for Stay Pending Review with the Ninth Circuit Court of Appeals. The Motion contends that the DEA's new rules violate the Administrative Procedures Act because they were issued without notice or opportunity for comment, they will cause needless irreparable harm to the growing hemp industry, and they impose these hardships without cause or sufficient evidence that said products present any threat to the public. In March, 2002, the Court granted the Motion for Stay.

On April 16th, 2003, the Ninth Circuit Court granted the hemp industry’s Motion to Stay. The court heard arguments in the case and ruled in February 2004 that foods made with hemp cannot be regulated by the DEA. The three-judge panel concluded that, since "non-psychoactive hemp products" are not on the DEA’s list of dangerous drugs, the Administration has no jurisdiction over their sale. In June 2004, though, the Ninth Circuit Court agreed to re-hear its decision that the DEA cannot ban foods containing hemp. The court did not reverse its original decision on rehearing, and the DEA let its deadline pass for appealing the case to the United States Supreme Court. Three years after it was proposed, the hemp foods ban is dead.

In the last few years, the hemp foods industry has exploded in size from less than $1 million a year to more than $7 million in retail sales.