Seed case: hemp food ban.

FIRST THE DRUG Enforcement Administration tried to ban hemp foods by claiming they've been illegal for three decades; it's just that no one (including the DEA) noticed until recently. In June the U.S. Court of Appeals for the 9th Circuit rejected that gambit, forcing the DEA to issue new regulations, complete with a public comment period, instead of trying to sneak by with a mere "interpretive rule."

Now those regulations are before the 9th Circuit, which heard oral arguments for and against them in September. The DEA'S attorney, Daniel Dormont, did not get off to a promising start, struggling to explain why the DEA wants to stop people from eating products such as Hemp Plus Granola and Nutiva Hemp Chips, which may contain tiny traces of marijuana's main active ingredient, tetrahydrocannabinol (THC), but not enough to get anyone high or even to trigger a drug test.

Judge Alex Kozinski repeatedly called Dormont's attention to the language of the Controlled Substances Act, which specifically exempts hemp seed from the ban on marijuana.

"Hasn't the agency ... nullified this sentence in the statute by modifying the definition of THC to cover exactly what Congress exempted?" he asked. Noting that poppy seeds, like hemp seeds, contain trace amounts of controlled substances, Kozinski had another question for Dormont: "Can you tell me how you are going to save the bagel?"