BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1147
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          Date of Hearing:   January 10, 2006
          Counsel:                Kimberly Horiuchi


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                  Mark Leno, Chair

                    AB 1147 (Leno) - As Amended:  January 5, 2006
                                           

          SUMMARY  :   Clarifies the definition of "marijuana" contained in  
          the Uniformed Controlled Substance Act (CSA) to exclude  
          industrial hemp.  Specifically,  this bill  : 

          1)Defines "industrial hemp" as an agricultural field crop  
            limited to the non-psychoactive varieties of the of the plant  
            Cannabis sativa L., having no more than three-tenths of 1%  
            tetrahydrocannabinol contained in the dry flowering tops and  
            cultivated from seeds originating in California, and processed  
            exclusively for the purpose of producing the mature stalks of  
            the plant and by-products of the stalk and seed.

          2)States that nothing in this section shall be construed to  
            authorize the cultivation, production, or possession of resin,  
            flowering tops, or leaves that have been removed from the  
            field of cultivation and separated from the other constituent  
            parts of the industrial hemp plant.

          3)Prohibits the transportation and/or sale of a seed capable of  
            germination across state lines of any variety of Cannabis  
            sativa L and any cultivation of the industrial hemp plant that  
            is not grown in a research setting or as an agricultural field  
            crop. 

           EXISTING LAW  :

          1)Provides that "marijuana" is all parts of the plant Cannabis  
            sativa L., whether growing or not; the seeds thereof; the  
            resin extracted from any part of the plant; and every  
            compound, manufacture, salt, derivative, mixture, or  
            preparation of the plant, its seeds or resin.  It does not  
            include the mature stalks of the plant, fiber produced from  
            the stalks, oil or cake made from the seeds of the plant, any  
            other compound, manufacture, salt, derivative, mixture, or  
            preparation of the mature stalks (except the resin extracted  








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            there from), fiber, oil, or cake, or the sterilized seed of  
            the plant which is incapable of germination.  (Health & Safety  
            Code Section 11018.)

          2)States that except as authorized by law, every person who  
            possesses any concentrated cannabis shall be punished by  
            imprisonment in the county jail for a period of not more than  
            one year, by a fine of not more than $500, by both such fine  
            and imprisonment, or shall be punished by imprisonment in the  
            state prison.  [Health & Safety Code Section 11357(a).]

          3)States that except as authorized by law, every person who  
            possesses not more than 28.5 grams of marijuana, other than  
            concentrated cannabis, is guilty of a misdemeanor and shall be  
            punished by a fine of not more than $100).  Notwithstanding  
            other provisions of law, if such person has been previously  
            convicted three or more times of an offense described in this  
            subdivision during the two-year period immediately preceding  
            the date of commission of the violation to be charged, the  
            previous convictions shall also be charged in the accusatory  
            pleading; if found to be true by the jury upon a jury trial or  
            by the court upon a court trial or if admitted by the person,  
            the provisions of existing law shall be applicable to him or  
            her, and the court shall divert and refer him or her for  
            education, treatment, or rehabilitation, without a court  
            hearing or determination or the concurrence of the district  
            attorney, to an appropriate community program which will  
            accept him or her.  If the person is so diverted and referred  
            he or she shall not be subject to the fine specified in this  
            subdivision.  If no community program will accept him or her,  
            the person shall be subject to the fine specified in this  
            subdivision.  In any case in which a person is arrested for a  
            violation of this subdivision and does not demand to be taken  
            before a magistrate, such person shall be released by the  
            arresting officer upon presentation of satisfactory evidence  
            of identity and giving his or her written promise to appear in  
            court, as provided in existing law, and shall not be subjected  
            to booking.  [Health & Safety Code Section 11357(b).]

          4)States that except as authorized by law, every person who  
            possesses more than 28.5 grams of marijuana, other than  
            concentrated cannabis, shall be punished by imprisonment in  
            the county jail for a period of not more than six months, by a  
            fine of not more than $500, or by both such fine and  
            imprisonment.  [Health & Safety Code Section 11357(c).]








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          5)States that except as authorized by law, every person 18 years  
            of age or over who possesses not more than 28.5 grams of  
            marijuana, other than concentrated cannabis, upon the grounds  
            of, or within, any school providing instruction in  
            Kindergarten or any of Grades 1 through 12 during hours the  
            school is open for classes or school-related programs is  
            guilty of a misdemeanor and shall be punished by a fine of not  
            more than $500, by imprisonment in the county jail for a  
            period of not more than 10 days, or both.  [Health & Safety  
            Code Section 11357(d).]

          6)Provides that every person who possesses for sale any  
            marijuana, except as otherwise provided by law, shall be  
            punished by imprisonment in the state prison.  (Health &  
            Safety Code Section 11359.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :    

           1)Author's Statement  :  According to the author, "While hemp  
            fiber, oil and non-viable seed are used by many sectors of the  
            economy for a variety of purposes, the Federal Government  
            restricts the growing of hemp and the sale of viable hemp  
            seed."

          "In 1937, the United States Government mistakenly categorized  
            hemp with marijuana due to their physical similarities and the  
            fact that hemp contains THC (although hemp contains only a  
            negligible amount of the chemical).  Hemp has so little THC  
            that it physically cannot be used as an intoxicant and is 100%  
            safe for the consumer.  Because hemp has no psychoactive  
            properties, the Federal Government has allowed hemp products  
            of every kind to be manufactured and sold in the United  
            States.  Californians can buy hemp clothing and food products  
            in stores throughout the state, but state law is silent on the  
            legality of growing hemp in California for in-state commerce."

           2)Industrial Hemp Defined  :  According to information provided by  
            the author, "Hemp is a crop grown and processed throughout the  
            world for paper, clothing, canvas, rope, food products and  
            many other commercial uses.  Hemp is used by the automobile  
            industry as reinforcement fiber in "biocomposites" -  
            press-molded or injection molded parts used in doors panels,  








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            boot liners etc., where they are replacing fiberglass  
            composites or more expensive plastics.  Hemp is used in foods  
            such as bread, energy bars, waffles, granola, coffee, beer,  
            veggie burgers, pretzels, salad dressings, and many food  
            products.  Hemp seed oil is an excellent replacement for  
            unhealthy fats in foods due to its excellent balance of the  
            essential fatty acids linoleic acid (omega-6) and  
            alpha-linolenic acid (omega-3).  Consuming the right balance  
            of essential fatty acids found in hemp seed oil offers  
            significant health benefits, including an improved HDL/LDL  
            cholesterol ratio and reducing the symptoms of dermatitis,  
            rheumatoid arthritis and other inflammatory diseases, as well  
            as improving and optimizing development in infants.

          "Hemp is used in body care products such as lotions, lip balms,  
            conditioners, shampoos, and soaps.  Hemp also may be used as  
            biofuel in the production of ethanol, a plant-based gasoline  
            additive and replacement. The Declaration of Independence was  
            actually written on hemp paper and hemp has a long history of  
            commercial use and cultivation in California and the United  
            States."

           3)Other States and Federal Government Attempt to Allow  
            Industrial Hemp  :  Several other states and the Federal  
            Government have attempted to pass legislation allowing the  
            commercial and personal growth and development of industrial  
            hemp.  The substance of the proposed legislation has varied,  
            but six states (Hawaii, Kentucky, Maine, Montana, North Dakota  
            and Virginia) have all removed barriers to the growth of hemp.  
             However, those states that have passed legislation have  
            limited growth for research purposes only and have not sought  
            to redefine criminal marijuana sections.  Currently, Hawaii is  
            the only state that has permission from the Drug Enforcement  
            Administration to grow industrial hemp on a one-quarter acre  
            of government land and under 24 hours of maximum security.   
            [See generally,  www.votehemp.com/legislation  .] 

          California attempted to pass its own hemp research bill in 2002.  
             AB 388 (Strom-Martin), of the 2001-2002 Legislative Session,  
            requested that the University of California conduct a study of  
            the economic opportunities associated with the production of  
            alternative fiber crops, including industrial hemp, flax and  
            kenaf.  However, Gray Davis vetoed AB 388 in September of 2002  
            stating, "There are a number of significant concerns regarding  
            the legality of producing industrial hemp in the United  








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            States.  The United States Department of Agriculture concluded  
            that 'legal issues currently preclude research into the  
            viability of industrial hemp fiber production in the United  
            States.'  In addition, the Drug Enforcement Administration  
            applies the same strict controls to industrial hemp as it does  
            to marijuana.  That is, it is a Schedule I Controlled  
            Substance under federal law."  This past year, House  
            Representatives Ron Paul (R-TX) and George Miller (D-CA)  
            attempted to amend the Federal Controlled Substances Act by  
            excluding industrial hemp from the definition of marijuana.   
            [109 H.R. 3037 is currently still pending in House Energy and  
            Commerce Committee.]  This bill also seeks to exclude  
            industrial hemp from the definition of marijuana although it  
            seems likely that such a change is pre-empted by the current  
            federal definition of marijuana.

           4)Is Removing Industrial Hemp from the Definition of Marijuana  
            Preempted by Federal Law  ?  The federal Controlled Substance  
            Act of 1970 defined five schedules of narcotics based on  
            medical uses and the likelihood of addiction.  [21 USCS  
            801-844.]  The Act defines marijuana as "all parts of the  
            plant Cannabis sativa L., whether growing or not; the seeds  
            thereof; the resin extracted from any part of such plant; and  
            every compound, manufacture, salt, derivative, mixture, or  
            preparation of such plant, its seeds or resin.  Such term does  
            not include the mature stalks of such plant, fiber produced  
            from such stalks, oil or cake made from the seeds of such  
            plant, any other compound, manufacture, salt, derivative,  
            mixture, or preparation of such mature stalks (except the  
            resin extracted there from), fiber, oil, or cake, or the  
            sterilized seed of such plant which is incapable of  
            germination."  [21 USCS 802(16)]  California has also adopted  
            this definition.  (See Health & Safety Code Section 11018.)

          The issue is whether the State of California can redefine  
            "marijuana" differently than federal statute.  A significant  
            way in which the Federal Government regulates state conduct is  
            through the interstate commerce clause.  The United States  
            Constitution states that of the powers granted to Congress is  
            "[the power] [t]o regulate commerce with foreign nations, and  
            among the several states, and with the Indian Tribes".   
            [United State Constitution Article I, Section 8.]  The United  
            States Supreme Court has stated that the Congress is within  
            its right to supersede state drug laws because even intrastate  
            manufacturing and sales affects a national and international  








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            drug trade that poses a risk to the United States as a whole.   
            [21 USCS 801,  Gonzales vs. Raich  (2004) 125 S.Ct. 3195.]  

          The Federal Government may use the interstate commerce clause to  
            affect state law if the activity regulates the use of the  
            channels of interstate commerce, the instrumentalities of  
            interstate commerce, and activities that substantially affect  
            interstate commerce.  [  Lopez v. United States  (1995) 514 US  
            549.]  In viewing those factors, the court has held that if  
            legislators have a rational basis for believing that a  
            regulation affects interstate commerce and the means chosen  
            are reasonable and appropriate, congressional action will  
            probably be deemed a fair use of the interstate commerce  
            clause.  [  Heart of Atlanta of Atlanta Motel vs. United States   
            (1964) 379 U.S. 241 and  Katzenbach vs. McClung  (1964) 379 U.S.  
            294.]  

          There are two analogous cases that might shed light on whether  
            the State of California may amend its marijuana statute in  
            manner different than the federal statute.  First, in  Wickard  
            vs. Filburn  , the Supreme Court held that the Agricultural  
            Adjustment Act of 1938 which permitted the Secretary of  
            Agriculture to regulate the growth and consumption of wheat on  
            every farm in the United States.  The Court reasoned that even  
            one farmer's growth and consumption because of the "cumulative  
            effect" each farmer might have on the overall wheat industry  
            and, hence, the national economy.  [  Wickard vs. Filburn  (1942)  
            317 U.S. 111.]  

          Second, is  Gonzales vs. Raich  and related cases relating to  
            medical marijuana.  In late 2004, the United States Supreme  
            Court, relying heavily on the aforementioned  Wickard  case,  
            held that California could not exempt marijuana for medicinal  
            purposes from the criminal possession statute.  The court  
            based its ruling on the idea that use of "any commodity, be it  
            wheat or marijuana, has a substantial effect on the supply and  
            demand in the national market for that commodity."  [  Raich  at  
            2208.]  
           
          Vote Hemp, a non-profit organization involved in the efforts to  
            legalize hemp, argues that federal law does not preempt hemp  
            specifically.  In its letter of support, Vote Hemp argues, 

          "This bill in the form in which, we understand, will be  
            presented in Committee would amend the Health and Safety Code  








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            to exclude from the definition of 'marijuana', 'industrial  
            hemp' which would be defined as the plant Cannabis sativa  
            having no more than 3/10 of 1% THC, cultivated from seed  
            originating within California, and cultivated and processed  
            exclusively for the purposes of producing hemp fiber,  
            sterilized seed and seed oil.  It would be unlawful to remove  
            the resin, flowering tops or leaves of the Cannabis plant from  
            the field of cultivation, and as well as to sell or transport  
            industrial hemp seed that is capable of germination across  
            state borders."

          "The concern about federal pre-emption, of course, is based on  
            the definition of 'marihuana' under the federal Controlled  
            Substances Act as including 'all parts of the plant Cannabis  
            sativa L., whether growing or not . . . . '  [2 U.S.C.  
            802(16).]  While industrial hemp is a specially bred,  
            non-psychoactive variety of the species Cannabis sativa L.,  
            the plant still belongs to that species.

          "On the other hand, the Controlled Substances Act definition of  
            "marihuana" specifically excludes hemp stalk, fiber, seed and  
            oil:  'Such term [marihuana] does not include the mature  
            stalks of such plant, fiber produced from such stalks, oil or  
            cake made from seeds of such plant, any other compound . . .  
            or preparation of such mature stalks (except the resin  
            extracted therefrom), fiber, oil or cake, or the sterilized  
            seed of such plant which is incapable of germination.'  [2  
            U.S.C. 802(16).] 

          "By reason of this specific exclusion, it is currently lawful  
            under federal law - and has been for almost 70 years - to  
            import into the United States, sell within the United States  
            and make and sell products made from, the excluded parts of  
            the Cannabis plant - i.e., hemp fiber, stalk, seed and oil.   
            The question is whether federal law would automatically  
            prohibit the growing of industrial hemp plants under state law  
            - as contemplated by this bill - in a way that allows only the  
            excluded, i.e., federally permissible, parts of the Cannabis  
            plant to enter any commerce at all.  That is, under this bill,  
            as we understand its operation, no part of the Cannabis plant  
            could leave a farmer's field other than the excluded parts of  
            the plant."

          "The courts have never before confronted such a state law regime  
            for licensing and regulating the cultivation of industrial  








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            hemp.  The basic legal framework in which such a regime would  
            be analyzed consists of the following elements:

             (b   It is not completely settled whether the low-THC,  
               industrial hemp variety of the Cannabis sativa L. plant  
               itself is a Schedule I substance under the CSA.  The United  
               States Court of Appeals for the First Circuit has answered  
               that question in the affirmative.  [  New Hampshire Hemp  
               Council, Inc. v Marshall  , 203 F.3d 1 (1st Cir.), cert.  
               denied, 531 U.S. 828 (2000).]  However, the United States  
               Court of Appeals for the Eighth Circuit just heard oral  
               argument in the case of  United States v. White Plume  , Nos.  
               05-1654 et al., (8th Cir., argued and submitted Dec. 12,  
               2005); during that argument, two of the judges indicated  
               that they would not necessarily accept that Congress  
               intended to allow hemp seed, oil, fiber and stalk to be  
               imported, used and processed in the United States but not  
               allow the hemp plants themselves to be grown.

             b)   As noted above, the CSA does not cover - and the Drug  
               Enforcement Administration cannot regulate, that is, it  
               cannot ban the possession, importation or sale of - the  
               exempted parts of the plant, i.e., sterilized hemp seed,  
               oil, stalk and fiber.  [  Hemp Indus. Ass'n v. DEA  , 357 F.3d  
               1012 (9th Cir. 2004).]  'Congress knew what it was doing,  
               and its intent to exclude non-psychoactive hemp from  
               regulation is entirely clear.'  (Id. at 1018.)  'DEA cannot  
               regulate naturally-occurring THC not contained within or  
               derived from 
             marijuana - i.e., non-psychoactive hemp products - because  
               non-psychoactive hemp is not included in Schedule I.'  [Id.  
               (emphasis in original).]

             (c    In order to control the interstate market in marijuana,  
               Congress has the power, under the Commerce Clause, to  
               regulate the intrastate cultivation and possession of the  
               regulated parts of the Cannabis plant, regardless of any  
               effort by the state to legalize such intrastate cultivation  
               or possession for any purpose.  [  Gonzales v. Raich  , 125 S.  
               Ct. 2195 (2005).]  In  Raich  , the Supreme Court, first,  
               re-affirmed a general principle of Commerce Clause  
               jurisprudence that Congress has the power to regulate  
               activities that 'substantially affect' interstate commerce  
               and that even a purely local activity, and even one that is  
               not commercial by its nature, 'may still, whatever its  








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               nature, be reached by Congress if it exerts a substantial  
               economic effect on interstate commerce.'  [125 S. Ct. at  
               2205-06, quoting  Wickard v. Filburn  , 317 U.S. 111, 125  
               (1942).]"

            "The  Raich  Court then invoked the holding of the  Wickard   
            decision as the principal precedent for upholding Congress's  
            power to regulate intrastate production of a regulated  
            commodity.  In  Wickard  , a farmer challenged the federal  
            program setting quotas on raising wheat on the grounds that  
            the only wheat he was growing would actually be consumed on  
            the very farm on which he was growing it.  The Court ruled  
            that federal law could, nevertheless, regulate and restrict  
            that farming operation, because even home-grown wheat  
            -multiplied by every farm that might grow wheat only for home  
            consumption - could have a significant effect on the  
            interstate wheat market."

            "The Court reasoned that even if the farmer's 'activity be  
            local and though it may not be regarded as commerce, it may  
            still, whatever its nature, be reached by Congress if it  
            exerts a substantial economic effect on interstate commerce,  
            and this irrespective of whether such effect is what might at  
            some earlier time have been defined as 'direct' or 'indirect.'  
             (317 U.S. at 125.)  In this case, the Court found, that the  
            farmer's 'own contribution to the demand for wheat may be  
            trivial by itself is not enough to remove him from the scope  
            of federal regulation where, as here, his contribution, taken  
            together with that of many others similarly situated, is far  
            from trivial.'  (Id. at 127.)"

            "In  Raich  , the Court found that the  Wickard  case established  
            the principle that 'Congress can regulate purely intrastate  
            activity that is not itself 'commercial, in that it that is  
            not produced for sale, if it concludes that failure to  
            regulate that class of activity would undercut the regulation  
            of the interstate market in that commodity.'  (125 S. Ct. at  
            2206.)  The Court then reasoned that:

            "Here, too, Congress had a rational basis for concluding that  
            leaving home-consumed marijuana outside federal control would  
                                        similarly affect price and market conditions.  . . .  The  
            parallel concern making it appropriate to include marijuana  
            grown for home consumption in the CSA is the likelihood that  
            the high demand in the interstate market will draw such  








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            marijuana into that market.  While the diversion of homegrown  
            wheat tended to frustrate the federal interest in stabilizing  
            prices by regulating the volume of commercial transactions in  
            the interstate market, the diversion of homegrown marijuana  
            tends to frustrate the federal interest in eliminating  
            commercial transactions in the interstate market in their  
            entirety.  In both cases, the regulation is squarely within  
            Congress' commerce power because production of the commodity  
            meant for home consumption, be it wheat or marijuana, has a  
            substantial effect on supply and demand in the national market  
            for that commodity.  [Id. at 2207 (emphasis added).]"

           5)Arguments in Support  :  Vote Hemp states, "A strong argument  
            can be made that the state law enacted by this bill would not  
            be federally pre-empted.  The key distinction between the  
            state law that would be enacted by this bill and the laws at  
            issue in the cases dealing with congressional power to  
            regulate particular activity (including Wickard  and  Raich  ) is  
            that, in the case of this bill, the only subjects of the  
            commerce - the only products that could enter interstate or  
            intrastate commerce, or affect interstate commerce - are  
            actually ones which Congress has chosen not to regulate:  the  
            exempt parts of the plant, including hemp stalk; fiber;  
            sterilized seed and oil.  There is no possibility here that  
            'the high demand in the interstate market' could 'draw such  
            marijuana into that market.'  The flowers of the hemp form of  
            cannabis are useless as a drug, and are not  
            fungible/substitutable for drug marijuana, so there is no  
            'pull' from the interstate (or intrastate for that matter)  
            marijuana market - under this bill, under state law, no  
            non-exempt parts of the plant could leave the farmer's  
            premises. 

          "Based on the above framework, the argument would be that even  
            if Congress  intended to ban the possession or sale of any  
            species of the Cannabis sativa plant, regardless of THC  
            content, i.e., including industrial hemp plants, as one court  
            held in  New Hampshire Hemp Council, supra  , for three reasons,  
            Congress could not have intended that the CSA would cover the  
            situation in which the plants themselves would be grown  
            in-state, under state law and supervision, in such a way that  
            neither the plants nor any of the regulated parts of the plant  
            could  enter commerce of any kind."  

          "First, Congress's own findings in the CSA, read together with  








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            the legislative history of the Act, suggest that Congress did  
            not intend to preclude a state regulated regime in which only  
            the non-regulated parts of the plant would enter commerce at  
            all. As the Court observed in  New Hampshire Hemp Council  ,  
            'While in 1937 Congress had indicated in legislative history  
            that production for industrial uses would be protected . . .  
            we can find no indication that Congress in 1970 [in enacting  
            the CSA] gave any thought to how its new statutory scheme  
            would affect such production.'  (203 F.3d at 7.)  To be sure,  
            Congress did not take any steps to exclude any  
            non-psychoactive type of Cannabis plant from the definition of  
            'Marihuana,' the Court found:  'The difficulty is that  
            Congress' main vehicle for protecting industrial-use plant  
            production in 1937 was . . . the complex scheme of  
            differential tax rates[,] . . . the regime that was  
            drastically modified in 1970 in favor of a broad criminal ban  
            . . . a ban which read literally embraces production of  
            cannabis sativa plants regardless of use.'  (Id.)

          "But that does not answer the question of what Congress intended  
            as to purely intrastate, state-regulated production of  
            Cannabis plants - themselves covered by the CSA -  that would  
            not result in any regulated part of the plant entering  
            commerce.  Did Congress intend to exclude state regulation in  
            that situation?  In enacting the CSA, Congress made specific  
            findings as to the need to regulate intrastate transactions:

               (3     ' . . .  Incidents of the traffic which are not an  
                 integral part of the interstate or foreign flow, such as  
                 manufacture, local distribution and possession,  
                 nonetheless have a substantial and direct effect upon  
                 interstate commerce because:

                    (3?          'After manufacture, many controlled  
                       substances are transported in interstate commerce;

                    (3?          'Controlled substances distributed  
                       locally usually have been transported in interstate  
                       commerce immediately before their distribution;  
                       and,

                    (3?          'Controlled substances possessed commonly  
                       flow through interstate commerce immediately prior  
                       to such possession.









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               (4     'Local distribution and possession of controlled  
                 substances contribute to swelling the interstate traffic  
                 in such substances.

               (5)    'Controlled substances manufactured and distributed  
                 intrastate cannot be differentiated from controlled  
                 substances manufactured and distributed interstate.   
                 Thus, it is not feasible to distinguish in terms of  
                 controls between controlled substances manufactured and  
                 distributed interstate and controlled substances  
                 manufactured and distributed intrastate . . . .  [21  
                 U.S.C. Section 801(3), (4) and (5)].'

               "Not one of these findings applies to the situation in  
               which intrastate industrial hemp is grown and processed in  
               such a way that no regulated part of the plant enters  
               commerce.  In that situation, no controlled substance  
               enters either intrastate or interstate commerce, either  
               before or after production of the hemp seed, oil, stalk and  
               fiber.  No Cannabis plant, or any regulated part of the  
               plant, will have been transported in, or flowed through,  
               interstate commerce, assuming feral hemp seed from within  
               California is used, as required by this bill.  There is no  
               possibility of local growing of industrial hemp, regulated  
               by the state, contributing to increasing the supply of  
               controlled parts of the plant, either within the state or  
               in interstate commerce.  And it is easy to differentiate  
               the controlled substance grown intrastate from what enters  
               interstate commerce - only items that Congress specifically  
               intended not to regulate.  Congress's own findings, then  
               suggest that Congress may well have not intended to  
               preclude state regulation of intrastate cultivation of  
               industrial hemp that does not result in any regulated part  
               of the plant entering commerce at all.

               "Second, Congress has clearly decided to allow the  
               non-regulated parts of the plant to enter foreign commerce,  
               that is, to be imported directly into the United States.   
               Why would Congress intend to allow someone in Canada to  
               grow Cannabis and import the non-regulated parts of the  
               plant into Washington State but not allow someone in  
               California to grow Cannabis and import the same  
               non-regulated parts of the plant into Washington State  
               through Oregon?  The answer is obvious:  because the latter  
               situation poses the risk of diversion of the regulated item  








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               itself, the Cannabis plant including its regulated parts,  
               into and within the United States.  But would Congress  
               still have intended to achieve this anomalous result where  
               there is no such realistic risk by reason of state  
               regulation?  A strong argument can be made that the answer  
               is no.

               "Third, to interpret the statute as reaching the subject  
               activity - state-regulated intrastate industrial hemp  
               cultivation where the regulated parts of the plant never  
               enter commerce - would arguably result in an  
               unconstitutional exercise of Congressional power - i.e.,  
               beyond what the Commerce Clause would allow.  Certainly,  
               Congress could choose to regulate hemp stalk, fiber seed  
               and oil.  But it has not.  Congress having chosen not to  
               regulate foreign or interstate commerce in that class of  
               products, how could Congress then regulate intrastate  
               activity that results only in putting that same class of  
               products into commerce?  Therein lays the critical  
               distinction between this situation and  Raich  , with respect  
               to congressional authority to regulate intrastate  
               cultivation of Cannabis.  As noted above, in  Raich  the  
               Court held that regulation of home-grown marijuana for  
               medical use 'is squarely within Congress' commerce power  
               because production of the commodity meant for home  
               consumption, be it wheat or marijuana, has a substantial  
               effect on supply and demand in the national market for that  
               commodity.' 125 S. Ct. at 2207.

               "Significantly, that is not true of cultivation of  
               industrial hemp under strict state regulation.  The only  
               things that would be purchased or used, within or without  
               California, are hemp stalk, fiber, sterilized seed and oil  
               - which Congress has chose not to regulate.  The  
               manufacture and sale of hemp stalk, fiber, seed and oil  
               in-state will, of course, affect interstate commerce in  
               those items, but again, Congress has chosen not to restrict  
               those items.  It seems clear that this activity will not  
               affect the interstate market for marijuana, in any way.   
               The original seeds for in-state cultivation must come from  
               feral plants, under the requirements set forth in this  
               bill.  No marijuana will be used as such, anywhere or any  
               time.  No 'controlled substance' can cross a state line -  
               unlike the situation in  Raich  in which, once marijuana is  
               in the hands of a medical user, it could be sold,  








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               transported, exchanged, etc.  And in this case, the  
               'illicit drug' - the regulated commodity, the industrial  
               hemp plant - can easily be distinguished, with respect to  
               origin, use, etc., from the articles that enter commerce,  
               the hemp stalk, fiber, seed and oil.

               "For these reasons, a strong argument could be made that  
               the in-state cultivation of industrial hemp under strict  
               conditions allowing only the unregulated articles to enter  
               commerce, cannot affect market supply or demand for  
               marijuana and, indeed, does not affect interstate commerce  
               at all, except in those articles Congress has chosen not to  
               regulate.  It could then be argued further that, having  
               chosen not to regulate foreign or interstate commerce hemp  
               stalk, fiber, seed and oil, Congress cannot exercise its  
               Commerce Clause power to prevent the states from regulating  
               activity that does nothing more than put these articles  
               into commerce."

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Vote Hemp (Sponsor)
          Board of Supervisors, City and County of San Francisco
          Community Alliance with Family Farmers
          Dr. Bronner's Magic Soaps
          Drug Policy Alliance Network
          Hemp Industries Association
          Nutiva
          Rainforest Action Network
          Sierra Club California

           Opposition 
           
          None on file
           

          Analysis Prepared by  :    Kimberly Horiuchi / PUB. S. / (916)  
          319-3744