SAN FRANCISCO — The government fought a two-pronged battle in the drug war Monday, arguing in a federal appeals court that it can ban hemp foods and strip doctors of their licenses for recommending marijuana.
In the case brought by the hemp industry, the Drug Enforcement Administration asked a three-judge panel of the 9th U.S. Circuit Court of Appeals to let it outlaw food products containing hemp. The court last month blocked the DEA from enforcing a ban it enacted in October, pending the outcome of the case.
Hemp is an industrial plant related to marijuana. Fiber from hemp plants long has been used to make paper, clothing, rope and other products. Its oil is found in body-care products such as lotion, soap and cosmetics and in a host of foods, including energy bars, waffles, milk-free cheese, veggie burgers and bread.
DEA attorney Daniel Dormont said the government banned food made with hemp because “there’s no way of knowing” whether some products may get consumers high.
Hemp food sellers say their products are full of nutrition, not drugs. They say the food contains such a small amount of the active ingredient in marijuana that it’s impossible to get high.
In October, the DEA declared that food products containing even trace amounts of tetrahydrocannabinol — the psychoactive chemical known as THC that is found in marijuana and sometimes in hemp — were banned under the Controlled Substances Act.
The DEA ordered a halt in the production and distribution of all goods containing THC that were intended for human consumption. The DEA also ordered all such products destroyed or removed from the United States by March 18, but the 9th Circuit suspended that order so it could decide whether federal law may classify hemp food as an illegal controlled substance such as heroin.
The court did not indicate when it would rule on either the hemp case, or a separate medical marijuana case judges also heard Monday.
In that case before the same three-judge panel, the Department of Justice asked the court to lift a 2000 order that prohibits the government from threatening to revoke doctors’ federal licenses to dispense medication if they recommend marijuana to sick patients.
Justice attorney Michael Stern said doctors are interfering with the drug war and circumventing the government’s judgment that marijuana has no medical benefits.
Doctors who recommend marijuana in the eight states that have medical marijuana laws “will make it easier to obtain marijuana in violation of federal law,” he said.
Graham Boyd, an American Civil Liberties Union attorney, told the court that the government was trying to stifle doctor-patient interactions.
“That is speech that is protected by the First Amendment,” he argued.
The case stems from an order by U.S. District Judge William Alsup, who prohibited the Justice Department from revoking doctors’ licenses to dispense medication “merely because the doctor recommends medical marijuana to a patient based on a sincere medical judgment.” Alsup’s order also prevents federal agents “from initiating any investigation solely on that ground.”
The case was an outgrowth of Proposition 215, which California voters approved in 1996. It allows patients to lawfully use marijuana with a doctor’s recommendation.
Following the measure’s passage, the Clinton administration said that doctors who recommended marijuana would lose their federal licenses to prescribe medicine. He said the doctors would be excluded from Medicare and Medicaid and could face criminal charges.
Other states with medical marijuana laws include Alaska, Arizona, Hawaii, Maine, Nevada, Oregon and Washington.
Last year, the U.S. Supreme Court said clubs that sell marijuana to the sick with a doctor’s recommendation are breaking federal drug laws. Several pot clubs continue to operate in cities including San Francisco.
In February, the government raided one San Francisco club and agents shut down a West Hollywood cannabis club in October.
The cases are Hemp Industries Association v. Drug Enforcement Administration, 01-71662 and Conant v. Walters, 00-17222.