Opinion Analysis: An order banning all hemp foods might have a valid military purpose, but is overly broad, in United States v. Pugh, No. 17-0306/AF
CAAF decided the interlocutory Air Force case of United States v. Pugh, 77 M.J. 1, No. 17-0306/AF (CAAFlog case page) (link to slip op.), on November 7, 2017. Reviewing the blanket prohibition on consuming hemp products in Air Force instruction 90-507, paragraph 1.1.6., a unanimous CAAF finds that while the prohibition “may have a valid military purpose, it is overly, and inappropriately, broad as it pertains to Food and Drug Administration (FDA) approved food products.” Slip op. at 2. The Air Force CCA’s decision is reversed and the military judge’s ruling dismissing the charge is reinstated, with prejudice.
Judge Sparks writes for the unanimous court.
A general court-martial composed of officer members convicted Major (O-4) Pugh of:
willful dereliction of duty in violation of Article 92, UCMJ, 10 U.S.C. § 892, by consuming Strong and Kind bars, a product containing hemp seeds, which is prohibited by AFI 90-507.
United States v. Pugh, No. 2016-11, slip op. at 2 (A.F. Ct. Crim. App. Mar. 10, 2017) (discussed here). Pugh was acquitted of a separate allegation of wrongful use of marijuana. The members sentenced Pugh to be dismissed.
After the findings were announced, the defense moved to dismiss the specification asserting that AFI 90-507 is unlawful. The military judge reserved ruling, but ultimately granted the motion and then denied a prosecution motion for reconsideration. The Government appealed to the CCA, which reversed the military judge’s dismissal. CAAF then granted review of a single issue:
Whether the military judge erred in finding that AFI 90-507 serves no valid military purpose and dismissing the additional charge and its specification.
Today’s opinion is short and fact-specific, with Judge Sparks explaining that “banning legal, properly labeled food products well regulated by the United States government under the guise of protecting airmen from unlabeled, unregulated, illegal food products is well beyond the Government’s stated purpose for the ban.” Slip op. at 5.
The order at issue read:
1.1.6. Studies have shown that products made with hemp seed and hemp seed oil may contain varying levels of tetrahydrocannabinol (THC), an active ingredient of marijuana, which is detectable under the Air Force Drug Testing Program. In order to ensure military readiness, the ingestion of products containing or products derived from hemp seed or hemp seed oil is prohibited. Failure to comply with the mandatory provisions of this paragraph by military personnel is a violation of Article 92, UCMJ. Violations may result in administrative disciplinary action without regard to otherwise applicable criminal or civil sanctions for violations of related laws.
(emphasis in original). The same language is found in the current version of AFI 90-507.
To be lawful an order must:
(1) have a valid military purpose, and (2) be clear, specific, and narrowly drawn.
Slip op. at 4 (quoting United States v. Sterling, 75 M.J. 407, 14 (C.A.A.F. 2016) (CAAFlog case page)). The order in this case fails the second prong (and may also fail the first).
The asserted military purpose of the ban on consumption of hemp products is that:
products made from hemp seed and hemp seed oil must be banned to ensure military readiness because they may contain varying levels of THC, which is detectable under the Air Force Drug Testing Program.
Slip op. at 5. This rationale isn’t expressly rejected in Judge Sparks’ opinion, however he observes that:
In attempting to prove [wrongful use of marijuana], the Government presented evidence and argued that commercially available hemp products could never interfere with the drug testing because these products did not contain any appreciable level of THC. Specifically, the Government’s expert witness, Dr. David Turner, testified that a person could not eat enough KIND bars to trigger a positive drug test. . . .
Slip op. at 5. This observation suggests that CAAF is unconvinced that hemp products must be banned because they may contain detectable levels of THC.
The breadth of the ban, however, is too great:
the Government on appeal in this Court advanced the argument that such a ban is necessary to protect the reliability and integrity of the drug testing program. However, a blanket ban on all legally available commercial food products sold and regulated in the United States does not advance this military purpose. Airmen ingesting Strong & KIND bars do not represent a threat to the integrity and accuracy of the Air Force Drug Testing Program because commercially available United States food products containing hemp seeds do not contain enough THC detectable at the levels proscribed by the department.
True, the Air Force has a legitimate concern in prohibiting hemp food products that contain enough THC to trigger a positive drug test. However, banning legal, properly labeled food products well regulated by the United States government under the guise of protecting airmen from unlabeled, unregulated, illegal food products is well beyond the Government’s stated purpose for the ban. The regulation is therefore overbroad because Appellant’s act of consuming Strong & KIND bars cannot interfere with the Air Force Drug Testing Program.
Slip op. at 5-6 (paragraph added) (marks and citations omitted).
AFI 90-507 is an insufficient basis to support a charge of dereliction when it applies to legal, FDA-approved food products.
Slip op at 6.
This conclusion clearly applies only to legal, FDA-approved food products, and so the prohibition likely still applies to unregulated hemp products (is black market granola a thing?). And so the willful consumption of unregulated hemp products is still prohibited. But whether an Airman can be prosecuted for the inadvertent consumption of unregulated hemp products under a negligent dereliction of duty theory will likely turn on CAAF’s decision in another Air Force case pending before the court: United States v. Blanks, No. 17-0404/AF (grant discussed here). There CAAF is considering the mens rea required for dereliction of duty.
• AFCCA opinion
• Blog post: CAAF grants review of post-trial Article 62 appeal
• Appellant’s brief
• Appellee’s (A.F. App. Gov’t Div.) answer
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis