For seven years, the hemp ice cream produced in Das Agua's shop, Original Sources, made him a successful businessman. Today it makes him a criminal.
Created with "milk" made from the ground seeds of industrial hemp -- marijuana's low-tetrahydrocannabinol (THC) sister plant -- Agua's Hemp I Scream may now be a controlled substance, thanks to an October 9 ruling by the Drug Enforcement Administration that deems illegal any foods containing even a trace of THC, pot's psychoactive ingredient.
The ruling delivered a heavy hit to Original Sources and other companies across the country that are active in the hemp-foods trade. "That was the DEA's attack on our twin towers," Agua says. "It's a terrorist attack on hemp, to try and frighten away the profitability of this wonderful industry. Hemp foods are a great way for people to be more healthy, more wholesome."
The hemp industry has grown steadily over the past decade, with businesses making fuel, fabric, paper, even auto parts from hemp imported into the U.S. Highly nutritious, sterilized hemp seeds -- cleansed of their outer skins, which may contain minuscule amounts of THC -- are used for the production of hemp foods, from tortilla chips and snack bars to flour, milk and baked goods. These seeds have been a legal food source for decades, thanks to the 1937 Marijuana Tax Act and numerous other federal rulings.
Although Agua and other hemp-food producers say their products consistently test negative for THC, the DEA's new zero-tolerance ruling creates problems. "In science, there is no such thing as zero anymore," says John Roulac, spokesman for Nutiva, a California company that's one of the nation's largest makers of hemp-based foods. "The DEA needs to establish protocols and standards for testing."
Eric Steenstra, an attorney who heads up the legal team for Vote Hemp, a collective of hemp-industry groups, agrees. "How many zeroes do you measure down to?" he wonders. "The DEA has never specified. But they have the ability to measure to an infinitesimal amount, and the cost to test to their standards would be astronomical for our industry."
This is not the first time that DEA policy shifts have hammered hemp foods. Two years ago, the Boulder Hemp Company was one of the nation's fastest-growing hemp-foods makers, thanks to a line of popular tortilla chips. That boom ended when the DEA seized a shipment of Canadian-grown seeds containing trace amounts of THC and threatened hemp-food makers with similar seizures of their source materials ("Hemp Takes a Hit," January 27, 2000). "I lost a good half-million dollars of investment money that walked away because of the DEA," Kathleen Chippi, Boulder Hemp Company's owner, says today.
The DEA eventually released the seeds under pressure from the Department of Justice, U.S. Customs and pro-hemp supporters. (According to the seeds' producer, the Kenex Company of Canada, you would have had to consume the entire truckload to catch a buzz.) Still, Chippi put her operation on hold until the federal government made a final ruling on the legal status of her business. "We're happy that after two years, they've finally come to a conclusion," she says, "but the conclusion they came to is insane. Hemp foods are basically illegal in this country now."
The DEA is giving hemp-food makers 120 days to destroy any inventory that is not in compliance with the new ruling. After February 6, any producers and retailers caught with such foods will be considered in possession of controlled substances.
"THC is a controlled substance; it is a drug," says DEA spokesman Will Glaspy, "so foods containing controlled substances would be illegal." The recent ruling was designed to "clear things up for some people," he adds, not as an attempt to change the status quo.
"Would you feel comfortable with kids eating candy bars with trace amounts of heroin?" Glaspy asks. "I don't think anybody would."
Roulac doesn't put much stock in the DEA's argument. The government, he notes, "is putting more arsenic in our water than they could ever find of THC in our products. You're allowed parts per million of bug parts in cereal." He suggests that the DEA's ruling has more to do with staying in business than with protecting consumers, since illegal hemp gives the DEA more to do and more money with which to do it. "Industrial hemp for food has never been illegal in the United States," Roulac says. "The DEA is attempting to change policy with no due process, no hearings, no cooperation with the industry affected."
Last month, Vote Hemp filed suit in California's federal court, requesting a stay of the DEA's ruling; that case is scheduled to be heard in February 2002. According to Steenstra, the ruling violates existing legal protections of hemp seeds and the foods made from them; it also violates procedural requirements that call for congressional hearings and public comment. Steenstra's team plans to push for a THC testing standard and will argue whether hemp foods should be banned at all.
In the meantime, Vote Hemp is asking supporters to take advantage of the sixty-day public-comment window included in the DEA's ruling and send their comments to the agency (dea.gov) by December 9. "One day the products are legal, the next day they're not," Steenstra says. "If DEA's mandate is to stop drugs from flowing into the United States, what the hell are they doing chasing after a bunch of legitimate companies offering a safe, highly nutritious product to the public?"
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Chippi isn't waiting for an answer: She's decided to get out of the hemp-foods business for good. One anticipated benefit: fewer unwanted visitors at her home in the mountains west of Boulder. "Black unmarked helicopters," she explains. "They come and hover 300 feet over my house."
And Agua, who peddled his first quarts of hemp ice cream to fans attending a Grateful Dead show at McNichols Arena in 1994 ("I sold everything I had in a snowstorm," he recalls), may move his business from Colorado to Canada if hemp-industry leaders and the government can't work out a settlement. "I'm considering the actions appropriate for me," he says. "I'm hopeful things can get growing again."
But should his current line remain illegal, he's considering a new product. "If all else fails," he says, "then we will make another vegan treat: 'Should Be Hemp I Scream,' packaged with lots of hemp information and a call to action."