BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Carole Migden, Chair A 2005-2006 Regular Session B 1 1 4 AB 1147 (Leno) 7 As Amended June 1, 2006 Hearing date: June 13, 2006 Health and Safety Code JM:br INDUSTRIAL HEMP HISTORY Source: Hemp Industries Association; Vote Hemp Prior Legislation: HR 32 (Strom-Martin) - 1999, adopted AB 388 (Strom-Martin) -2002, vetoed Support: Alice's Mountain Market; Alta Vista Growers; Alterna Professional Haircare; Marysville Appeal-Democrat (editorial); Atlas Corporation; Burcaw Chiropractic; California Certified Organic Farmers; California State Grange; CDM Corp; Center for Healing; Chico Enterprise-Record (editorial); Community Alliance with Family Farmers; Creative Research Management; Dr. Bronner's Magic Soaps; Eagle Trust Union; Eco Goods; EnvironGentle; Environmental Wholesale Products; Elk Creek Ranch; Fiddler's Green Farm, Inc.; French Meadow Bakery; Global Exchange; Green Party of California; Guaranteed Organic Certification Agency; Heartsong Herbal Brewing Company; Heavenly Low Carb; Hemp Industries Association; Hemp Sisters; Hemp Traders; Hempy's; Hirai Farms, Inc.; Human Exchange Musical Programs; Institute for Cultural Ecology; J. Ginsberg & Associates; Knoll Farms; Living Foods.Com; Luvland Farms Lavender; Malu Healthcare; New Hope Natural Media; North American Hemp Company; North American (More) AB 1147 (Leno) PageB Industrial Hemp Council, Inc.; Nutiva; Organic Ag Advisors; Organic Consumers Association; Orange County Register (editorial); PAD; Peace of Mind Consulting; Planning and Conservation League; Rainforest Action Network; Raw 4 Real; Robinson's Health Products; Salon Charisma; Sensuous Beauty, Inc.; Sierra Club California; Strictly Hemp.com; Sunset Ranch; Sweetgrass Natural Fibers; City and County of San Francisco; The Living Temple; Threshold Enterprises; Ultra Oil for Pets; Whole Balance Opposition:Californians for Drug-Free Schools; Save Our Society from Drugs; California Narcotic Officers' Association Assembly Floor Vote: Ayes 44 - Noes 32 KEY ISSUES SHOULD "INDUSTRIAL HEMP" BE DEFINED AS AN AGRICULTURAL FIELD CROP LIMITED TO THE NON-PSYCHOACTIVE VARIETIES OF THE PLANT CANNABIS SATIVA L., HAVING NO MORE THAN THREE TENTHS OF 1% TETRAHYDROCANNABINOL (THC) 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? SHOULD NUMEROUS LEGISLATIVE FINDINGS AND DECLARATIONS BE MADE REGARDING INDUSTRIAL HEMP, INCLUDING: INDUSTRIAL HEMP IS GROWN IN COUNTRIES SUCH AS CANADA, MANY EUROPEAN COUNTRIES, AUSTRALIA AND CHINA; SALE OF HEMP PRODUCTS ARE GROWING; CALIFORNIA COMPANIES IMPORT TONS OF HEMP FROM FOREIGN SOURCES TO PRODUCE HEMP PRODUCTS; AND CONTROLLED SUBSTANCE SCHEDULING DEFINITIONS AND CONCEPTS DO NOT APPLY TO INDUSTRIAL HEMP, AS SPECIFIED? PURPOSE The purpose of this bill is to define "industrial hemp" as a legitimate, valuable and non-psychoactive agricultural product. (More) AB 1147 (Leno) PageC Existing federal law places controlled substances in five schedules. Schedule I controlled substances are deemed to have no acceptable medical benefits and a high potential for abuse. Schedule I substances generally are subject to the most stringent restrictions in law. (21 U.S.C. 812.) Existing law includes marijuana in the list of Schedule I controlled substances. (Health & Saf. Code 11054.) Existing law 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 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 therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. (Health & Saf. Code 11018.) Existing federal law also defines marijuana as a Schedule I controlled substance. The federal definition of marijuana in Schedule I is the following: "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 therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination. (21 U.S.C. 802(16) and 812(10).) Existing federal law separately defines "tetrahydrocannabinols" (THC) as a Schedule I substance. (21 U.S.C. 812 (17).) (More) AB 1147 (Leno) PageD Decisions of the Ninth Circuit Court of Appeals have found that the reference to THC in Schedule I applies only to synthetic THC, because "if naturally-occurring THC were covered under THC, there would be no need to have a separate category for marijuana, which obviously contains naturally-occurring THC. (Hemp Industries v. DEA (2004) 357 F.3d 1012, 1015, quoting an earlier decision in a related case.) Existing federal Drug Enforcement Administration regulations , in contrast to the Hemp Industries decisions, provide that any product intended for human consumption that contains any measurable quantity of THC is illegal because THC is included as a Schedule I substance. (21 CFR part 1308.)<1> Existing law 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 & Saf. Code 11357, subd. (a).) Existing law states that except as authorized by law, every person who possesses not more than 28.5 grams (an ounce) of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than $100. Following a specified number of repeat convictions, a defendant convicted of simply possession of under an ounce of marijuana shall be diverted and referred for treatment. (Health & Saf. Code 11357, subd. (b).) Existing law 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 & Saf. Code 11357, subd. (c).) --------------------------- <1> It appears that this regulation, perhaps in light of the Hemp I and II decisions, is not currently being enforced. (More) AB 1147 (Leno) PageE Existing law 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 & Saf. Code 11357, subd. (d).) Existing law 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 & Saf. Code 11359.) This bill defines "industrial hemp" as follows: An agricultural field crop limited to the non-psychoactive varieties of the of the plant Cannabis sativa L., and the seeds produced therefrom; Industrial hemp shall have no more than three-tenths of 1% (0.3%) tetrahydrocannabinol (THC) contained in the dry flowering tops; Industrial hemp shall be cultivated and processed exclusively for the purpose of producing the mature stalks of the plant and by-products of the stalk and seed, including oil or cake made from seeds, and other preparations. This bill states that industrial hemp shall be cultivated only from seeds imported in accordance with laws of the United States or from seeds grown in California from feral plants, cultivated plants, cultivated plants or plants grown in research. This bill provides that industrial hemp growers shall, prior to harvest, obtain a laboratory test report indicating the THC levels of a random sampling of the dried flowering tops of the crop, as follows. (More) AB 1147 (Leno) PageF The laboratory test shall be issued by a lab registered with the DEA. The report shall state the percentage of THC in the sample and the time, date and location of the samples were taken. The person obtaining the report shall retain it for two years. The report shall be made available to law enforcement upon request. A copy of the report shall be given to each person purchasing, transporting et cetera the oil, cake or seed of the plant. The report shall be stamped to reflect whether it meets the standard for industrial hemp or not. (The sample can have a THC content of no more than 0.3%.) This bill 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. This bill includes an exception from this requirement for the mandatory testing of the plant for THC levels. This bill prohibits, except in accordance with the laws of the United States, the transportation 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. This bill includes the following legislative findings and declarations: Industrial hemp is produced in at least 30 nations including Canada, Britain, France, Germany, Romania, Australia, and China and is used by industry to produce thousands of products including: paper; textiles; food; oils; automotive parts; and, personal care products. The United States Court of Appeals Ninth Circuit has ruled in (More) AB 1147 (Leno) PageG Hemp Industries v. Drug Enforcement Administration that the Controlled Substances Act of 1970 explicitly excludes non-psychoactive hemp from the definition of marijuana, and the federal government has declined to appeal that decision. The Controlled Substances Act of 1970 (21 U.S.C. 812(b)) specifies the findings to which the government must attest in order to classify a substance as a Schedule I drug and those findings include that the substance has a high potential for abuse, has no accepted medical use, and has a lack of accepted safety for use, none of which apply to industrial hemp. According to a study commissioned by the Hemp Industries Association, sales of industrial hemp products have grown steadily since 1990 to more than $250 million in 2005, increasing at a rate of approximately $26 million per year. California manufacturers of hemp products currently import from around the world tens of thousands of acres worth of hemp seed, oil, and fiber products that could be produced by California farmers at a more competitive price and intermediate processing of hemp seed, oil, and fiber could create jobs in close proximity to the fields of cultivation. COMMENTS 1. Need for This Bill 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 (More) AB 1147 (Leno) PageH 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 and Hemp Uses 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 door panels, 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 (More) AB 1147 (Leno) PageI 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. Major Research Study from Purdue University Concerning Industrial Hemp - Evaluation of Hemp for Various Applications and Uses Industrial Hemp has received a significant amount of academic and political attention in recent years. Researchers at Purdue University - a major research university that is well-known for engineering, scientific and agricultural programs - recently published an exhaustive study of the potential value for hemp cultivation in the United States. Arguably, the Purdue study includes one of the most unbiased and credible evaluations of the potential for hemp use as food, fiber and composite materials component. The Purdue study opened with this observation: Hemp "is extremely unusual in the diversity of products for which it is or can be cultivated ." The Purdue study evaluated various current and proposed uses for hemp products: Oilseeds : "There are remarkable dietary advantages to hempseed oil . . ." Hemp seeds produce very nutritious oil, high in fatty acids that are found in fish oils. "[T]hese essential fatty acids do not serve as energy sources, but as raw materials for cell structure and as precursors for biosynthesis for many of the body's regulatory biochemicals." North American diets are seriously deficient in certain fatty acids in hemp oil. Hemp oil essential fatty acids are found in an optimal ratio of certain chemicals. Hemp oil also contains very useful antioxidants known as "tocopherols." (More) AB 1147 (Leno) PageJ In the past, hemp oils have been used in paints, inks and other similar industrial and personal applications. Linseed and other drying oils are favored for such applications. Hemp, classified with soybean oil as "semi-drying" oil, has been thought more suitable as a food source than an industrial oil. However, it appears that hemp varieties could be selected and cultivated that produced more of a drying oil. Increasing cultivation of such hemp varieties could reduce costs so as to make hemp oils competitive with linseed and similar oils. Fiber : Hemp fibers are strong and durable. Hemp was widely used for rope and sail cloth. China has a wide lead in the development of hemp fibers for textiles. Technological advances will likely be necessary before North American producers could successfully compete with Chinese firms. Pulp and Paper : "Hemp is useful for specialty applications such as currency and cigarette papers where strength is needed." Hemp is not currently competitive with wood pulp for newsprint, books, writing paper and general paper uses. In northern states, fast-growing poplars can be used to produce pulp for paper. However, hemp production in the southern US would likely yield at least twice the pulp per acre as a pine plantation (a common southern forestry product). Technology could increase the economic viability of hemp for paper products by allowing more of the plant to be used. Plastic Composites for Automobiles and Other Manufacturing Uses : Hemp plastic composites may be particularly valuable for industrial products. These composite materials are light and strong. Henry Ford used hemp materials in the 1920's. "Rather ironically in view of today's parallel situation, Ford's hemp innovations in the 1920's occurred at a time of [farm crisis], later to intensify with the depression. The need to produce new industrial markets for farm products led to a broad movement for scientific research in agriculture that . . . today is embodied in chemical applications of crop constituents." Mercedes currently uses hemp composites in (More) AB 1147 (Leno) PageK automobiles. Plastics are typically made from petroleum products. Rising costs of oil may make hemp products increasingly valuable. "Natural fibers [such as hemp] have considerable advantages for use in conveyance; low density and weight reduction. Favorable mechanical, acoustical and processing properties (low wear on tools), no splintering in accidents, occupational health benefits (compared to glass fibers), no off-gassing of toxic compounds, and price advantages." Hemp composites can be used for a wide-range of applications. Building Construction Products : Hemp is increasingly being used for thermal insulation products in Europe. Demand for hemp insulation is driven by the rising costs of heating and cooling, ecological concerns about fossil fuels and desires for renewable resources. The Purdue report noted: "Experimental production of hemp fiberboard has produced extremely strong material. The economic viability of such remains to be tested." Hemp could be valuable in producing high-quality concrete: "Hemp fibers added to concrete increase tensile strength while reducing shrinkage and cracking. Whole houses have been made based on hemp fiber." At least at this time, hemp cement material may be more costly than materials made with wood chips or straw from other crops. Hemp can be chemically combined with other materials to make high-quality and low-cost building products. "Hemp with gypsum and binding agents may produce light panels that may compete with drywall. Hemp [hurds] and lime mixtures make a high quality plaster." Hemp plaster can be poured like concrete and hardens into a stone-like material that is much lighter than cement and has much better heat and sound insulating qualities than cement. Animal Bedding and Absorbent Material : Hemp is a superior material for animal bedding and litter material for cats and other pets. Because hemp hurds (stalk cores) are very absorbent, they can be used to absorb oil spills and other pollution control uses. (More) AB 1147 (Leno) PageL Soil Erosion Control : Hemp materials are useful to control erosion. Soil erosion has become a matter of concern across the country. Hemp can also be used as a good alternative to plastics to control weeds in new plantings. Hemp can be used for biodegradable planting pots and other gardening uses. Cosmetics : Hemp is popularly used in shampoo, soaps and lotions. It has been reported that hemp lotion is particularly prized because it can be absorbed into the skin. Biofuels Potential : Researchers in Europe have touted the use of hemp for biofuels. Hemp, similar to corn, can be processed to produce ethanol. A process called pyrolysis - heating in the absence of air - can convert hemp to a form of charcoal, a fuel oil or methane. The Purdue study concluded that the competitive viability of hemp as a biofuel is "doubtful" because other biomass sources are relatively cheap. However, the Purdue study concluded that there "may be some potential for hemp biomass fuel near areas where hemp is cultivated." Ecological benefits of Hemp : "[Hemp] is . . . exceptionally suitable for organic agriculture, and is remarkably less 'ecotoxic' in comparison to most other crops." The use of pesticides and fungicides on hemp is usually unnecessary. 4. The THC Issue It is generally accepted that the characteristic "high" produced from ingestion of marijuana is caused by TCH - delta-9-tetrahydrocannabinol. However, as noted by the Purdue study, "cannabis contains a seemingly unique class of chemicals, the cannabinoids, of which more than 60 have been described, but only a few are psychoactive. Cannabinoids are produced in specialized epidermal glands [of the plant], which differ notably on different organs of the plant." The prohibition on (More) AB 1147 (Leno) PageM marijuana is effectively based on the presence of THC in the flowering tops (buds) and leaves of the plant. Other parts of the plant essentially have negligible THC content. Smoked marijuana generally has about 25 times more THC than hemp and hemp contains an antagonist to THC that cancels the effects of THC - smoking any amount of hemp would not intoxicate the smoker Industrial hemp has become the term of art for low THC hemp used for commercial and non-intoxicant purposes. Industrial hemp is generally defined as cannabis plants with a THC content of less than 0.3%. The Purdue report states that marijuana in the illicit market typically has a THC content of 5-10%. This is about 17-35 times the amount of THC found in industrial hemp. (Canadian government experimental standards for medicinal marijuana are set at 6% TCH.) Further, the other principal cannabinoids found in cannabis plants is CBD. CBD antagonizes (cancels or reduces) the effect of THC. CBD is found in abundance in industrial hemp, but not in the intoxicant form of cannabis. A ratio 2:1 CBD to THC suppresses the intoxicating effect of THC. Industrial hemp typically has a CBD-THC ratio of 5:1. Thus, any possible intoxicating effect from industrial hemp would be cancelled by another cannabinoid. Further, unlike alcohol, the intoxicating effects of TCH are not cumulative (after the point required to achieve significant intoxication). The intoxicating effects of THC are produced when the THC is ingested in a relatively short period of time and then THC amounts fall, even if the person continues to smoke marijuana. Thus, ingesting more of lower THC cannabis cannot make one as high as smoking a smaller amount of higher THC marijuana. For example: Cigarette A is made from marijuana with 10% TCH. Cigarette B is made from marijuana with 5% THC. One would not get as intoxicated from smoking two B cigarettes of B as one (More) AB 1147 (Leno) PageN would from smoking one cigarette of A. Simply stated, one could smoke a room full of industrial hemp and not get high. It has been reported that CBD can be used to synthetically produce THC. However, as stated in the Purdue study, "the illicit drug trade has access to easier methods of synthesizing THC or its analogues than by first extracting CBD from non-drug hemp strains." Further, marijuana growers have become extremely sophisticated in producing very strong strains of sinsemilla marijuana (female marijuana plants without seeds) in small spaces. Pollination of drug marijuana by industrial hemp fields would be extremely harmful to drug marijuana growers. Drug marijuana growers would thus not hide marijuana in hemp fields. Drug marijuana growers would seek to avoid being near hemp fields. It appears that 0.3% THC has been described as the standard for industrial hemp largely because this level was the standard for French farmers. The French have been aggressive in producing and promoting the crop. France, unlike much of Western Europe, did not previously ban hemp production. It appears that hemp was also unrestricted in the Soviet Union and satellite states. Setting hemp THC standards has been a matter of some dispute in the European Union. Countries other than France - including Russia - have developed hemp with lower THC content. It is likely that hemp with even lower THC concentrations could be developed. Hemp seeds have no measurable amounts of THC. Any THC found on seeds occurs from contact with other parts of the plant. As industrial hemp has a very low THC content, contamination of the seeds would appear to be of little concern. Drug testing concerns - minute amounts of THC in seed products Some law enforcement officials have expressed concerns that (More) AB 1147 (Leno) PageO wide-spread use of hemp products could interfere with drug tests because it could not be determined whether the metabolites of TCH found in blood or urine samples was produced by legitimate hemp seed products or marijuana. The Purdue study found this concern largely unsupported. "Federal US [drug testing] programs utilize a THC metabolite level of 50 parts per billion in urine. Leson (2000) found that this level was not exceeded by consuming hemp products, provided that THC levels are maintained below 5 ppm [parts per million] in hemp oil, and below 2 ppm in hulled seeds. Nevertheless, the presence of even minute trace amounts of THC in foods remains a tool that can be used by those wishing to prevent the hemp oil seed industry from developing." The Purdue study essentially recommended that stringent standards be set to reduce the amount of trace THC that could be found in hemp oil seed products. Marijuana growers would not likely use hemp fields to hide marijuana - hemp pollen would ruin marijuana plants As noted above, marijuana production has shifted to cultivation of non-seed plants. These plants have much higher concentrations of THC than seeded plants. Pollen from industrial hemp fields would ruin illicit marijuana plants. It is likely that marijuana growers would avoid planting anywhere near industrial hemp fields. The camel's nose under the tent argument Discussions about industrial hemp often note the argument that the legalization of industrial hemp could be the proverbial camel's nose under the tent leading to legalization of marijuana. At its core, this argument appears to assume that the public could conclude that the clear benefits of industrial hemp indicate that marijuana, because it comes from the same species of plant, is an appropriate and beneficial drug. Some ardent believers in the value of marijuana as a drug could also believe that the usefulness of hemp indicates that all forms of cannabis are good and beneficial. Such an argument has no logical basis. (More) AB 1147 (Leno) PageP Some would argue that the "camel's nose" argument is a "straw man" that is advanced or identified solely for the purpose of knocking it down. The fact that a plant is particularly beneficial for one purpose does not mean that it is valuable for a different and unrelated purpose. The fact that corn can be used to make an alcohol-based fuel does not mean drinking alcohol from corn is good. The fact that a marijuana smoker may justify his or her habit because hemp is a very beneficial plant does not mean that the general public would find marijuana any more acceptable than it is now. It does not appear that countries that allow hemp cultivation have higher rates of marijuana consumption than comparable countries that do no allow cultivation of hemp. Many European countries have authorized hemp cultivation in the last 15 years . . . Marijuana use has not risen with hemp production in Europe. Numerous studies have noted that European consumption of marijuana (for intoxication) is much lower than in the United States. (EU Annual Report on Drug Problems in Europe, 2005.) Many of the European countries with particularly low rates of marijuana use allow hemp cultivation. In general, marijuana consumption appears to be tied to the urbanization of a country. 5. Legislation Concerning Industrial Hemp in Other Jurisdictions 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. Hawaii recently implemented an experiment through permission from the Drug Enforcement Administration (DEA) to grow industrial hemp on a one-quarter acre of government land and (More) AB 1147 (Leno) PageQ under 24-hour security. It appears that the Hawaii hemp experiment terminated at the end of September 2003. According to the David P. West, Ph.D., agronomist hired to conduct the experimental planting, the DEA effectively frustrated attempts to fully implement the program. Although West was able to successfully develop a strain of hemp suitable for the climate of Hawaii, it appears that the plant material has been lost and that anyone starting a new program in Hawaii would need to re-do West's work. For example, Chinese hemp germplasm was lost while West waited for permits. West explained in his report that hemp has traditionally been a temperate climate (most of the mainland U.S.) crop, not a tropical climate crop. Under tropical conditions, hemp plants typically mature and reproduce very fast, such that inadequate fiber and stalk growth occurs. Canadian hemp seeds proved to be unsuitable for these reasons. West obtained seed from China and Japan. He was able to successfully grow large hemp plants through a mixture of Asian and European plants. He also noted that Hawaii could be used for winter hemp seed production, as is done with corn. West stated in his final report: Under the burden of the DEA's administrative delays, the project ground to a halt. I decided I had accomplished all I could in this climate. And it was time to quit, and, in doing so, to cry "Foul!" at the DEA's shenanigans. In this project I was able to demonstrate that the genetic potential exists within the world's germplasm [seed resources] to create a variety of hemp capable of growing in a few months in a tropical environment a forest of 10 foot plants to provide fiber to any of a long list of industries. I had the plants [obtained from China and Europe]; I showed it could be done. Perhaps, in some reasonable future, it may be done again. On September 30, 2003, this hemp (More) AB 1147 (Leno) PageR germplasm, like Kentucky hemp before it [when hemp production was outlawed by the federal government], was lost to humanity. A hemp research bill was introduced in California 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 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. This measure (109 H.R. 3037) is currently still pending in numerous committees, including the House Energy and Commerce Committee. This bill (AB 1147) also seeks to exclude industrial hemp from the definition of marijuana. However, the attempt to exclude industrial hemp from the definition of marijuana is likely to be challenged as preempted by federal law. 6. Industrial Hemp Definition in AB 1147 - Contrast with Federal Schedule I Definition of Marijuana This bill would change the California definition of marijuana (in Schedule I of the controlled substance schedules) to specifically provide that marijuana does not include "industrial hemp." Under this bill, marijuana (More) AB 1147 (Leno) PageS would include "all parts of the plant Cannabis sativa L, whether growing or not; the seeds thereof; the resin extracted from . . . the plant;" and every derivative from the plant. The bill defines industrial hemp thus: [A]n agricultural field crop that is limited to nonpsychoactive varieties of the plant Cannabis sativa L., having no more than three-tenths of one percent tetrahydrocannabinol contained in the dried flowering tops, that is cultivated from seed originating in California, and that is cultivated and processed exclusively for the purpose of producing the mature stalks of theplantsplant, fiber produced from the stalks, oil or cake made from the seeds of the plant, or any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin or flowering tops extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. (b) This [definition of industrial hemp] shall not be construed to authorize the following: (1) 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. (2) The transportation or sale across state borders of seed of any variety of Cannabis sativa L. that is capable of germination. (3) Any cultivation of the industrial hemp plant that is not grown in a research setting or as an agricultural field crop. Nothing in federal law defines marijuana in relation to the level of THC in the plant. The reference to THC in the federal scheduling is a separate listing of THC in the list of hallucinogenic substances. Federal law includes marijuana as a Schedule I substance. The federal definition states several exceptions to the definition of marijuana. These exceptions include "the mature stalks of (More) AB 1147 (Leno) PageT such plant, fiber produced from such stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of such mature stalks (except the resin therefrom), fiber, oil or cake, or the sterilized seed of such plant which is incapable of germination." (21 U.S.C. 802 (16).) 7. Issues of Possible Federal Law Preemption Flowing from the Definition of Industrial Hemp in This Bill Drug Preemption Issues Generally The federal Controlled Substance Act of 1970 defined five schedules of narcotics based on medical uses and the likelihood of addiction. (21 U.S.C. 801-844.) As noted above, California and federal law define "marijuana" as all parts of the plant Cannabis sativa L and derivatives therefrom. However, the definition of marijuana includes relatively broad exceptions from the definition of marijuana for the stalks of the plant, products produced from the stalks, the sterilized seed and oil and other products made from the seed. (21 USCS 802(16) and Health & Saf. Code 11018.) Essentially, marijuana is defined as the leaves, flowering tops and non-sterile seed of the cannabis plant. Federal law and California law separately schedule THC, the primary psychoactive substance in marijuana. (21 U.S.C. 812(17).) California law specifically provides that the reference to "tetrahydrocannabinols" in Schedule I concerns synthetic THC. As noted in the "Purpose" section, above, standing decisions of the federal Ninth Circuit provide that THC in the federal schedules refers only to synthetic THC, not the naturally-occurring THC found in (the separately scheduled) marijuana. However, DEA regulations, based on the inclusion of THC in Schedule I, purport to ban any product intended for human consumption that contains any amount of THC, including any product from a cannabis plant that includes naturally-occurring THC. (More) AB 1147 (Leno) PageU One issue presented by this bill is whether or not the California law can define "marijuana" differently than federal law. 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 States Const., Art. I, 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 drug trade that poses a risk to the United States as a whole. (21 USCS 801, Gonzales v. 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 U.S. 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 Motel v. United States (1964) 379 U.S. 241 and Katzenbach v. 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 v. Filburn, the Supreme Court held that the Agricultural Adjustment Act of 1938 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 has a "cumulative effect" on the overall wheat industry and, hence, the national economy. (Wickard v. Filburn (1942) 317 U.S. 111.) (More) AB 1147 (Leno) PageV Second, is Raich. 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 p. 2208.) The Preemption Issue in This Bill It does appear that California controlled substance laws need not be exactly the same as federal law, especially where California law does not directly conflict with federal law. For example, MDMA (so-called ecstasy) is not scheduled in California, although the drug is not legal under California law. There is no specific California law banning possession or distribution of MDMA, although persons who possess or distribute MDMA can be prosecuted under California law because MDMA is an analog of specifically banned substances. This state of affairs is different than the circumstances concerning medical marijuana, as California law purports to make possession of marijuana at the recommendation of a physician not a crime. It appears that the core of the preemption issue presented by this bill is the following: Does the definition of industrial hemp under this bill make it legal under California law to grow specified kinds of cannabis when that activity is illegal under federal law? Federal law exempts from the definition of marijuana the stalks of the plant, sterilized seed, and products made from these parts of the plant. Federal law thus includes in the definition of marijuana the flowering tops, leaves and un-sterilized seed of the plant. This bill defines as industrial hemp - and thus excludes from the definition of marijuana - the entire cannabis plant, including flowers and leaves, if the THC content of every part of the plant is very low. (Even under this bill, the leaves and tops could not be removed from the field of cultivation and separated from the rest of the plant.) (More) AB 1147 (Leno) PageW Sponsor's Arguments Concerning Preemption Sponsor Vote Hemp argues that federal law does not preempt this bill: It has been suggested that state legislation authorizing the cultivation of industrial hemp may be federally pre-empted because the federal definition of "Marihuana," listed as a Schedule 1 substance under the Controlled Substances Act (CSA) at 21 U.S.C. 802(16), covers all varieties and breeds of the Cannabis Sativa plant, including the special, distinct breed that is grown as industrial hemp. AB 1147, however, has been specifically designed to avoid any conflict with the federal CSA and should not be federally pre-empted. AB 1147 (1) requires the planting of industrial hemp seed originating in California and (2) permits only those parts of the hemp plant that are exempted from the CSA's definition of "Marihuana" to enter interstate commerce. In 2004, the Ninth Circuit held that the CSA's definition of "Marihuana" clearly exempts non-psychoactive hemp (e.g. sterilized seed, oil and fiber) from regulation under the CSA. Hemp Indus. Ass'n v. DEA, 357 F.3d 1012, 1018 (9th Cir. 2004). The federal government did not seek Supreme Court review of this decision. The U.S. Supreme Court has made clear that, under the Commerce Clause of the U.S. Constitution, Congress has the power to regulate activities that "substantially affect" interstate commerce and that even a purely local activity "'may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.'" Gonzales v. Raich, 125 S.Ct. 2195, 2205-06 (2005), quoting Wickard v. Filburn, 317 U.S. 111, 125 (1942). (More) AB 1147 (Leno) PageX Under AB 1147, however, the only activity that will affect interstate commerce is the sale of non-psychoactive hemp fiber, sterilized seed and oil, substances that are not covered at all by the CSA. While viable hemp seed will be traded in some fashion intrastate, this activity will have no affect on interstate commerce because there is no national market for that commodity. (Gonzales v. Raich, 125 S.Ct. at p. 2207.) (More) The Supreme Court's decision in Gonzales v. Oregon, No. 04-623 (2006), provides additional support for AB 1147 not being federally pre-empted. The Court recognized the CSA's chief purpose is to combat "recreational drug abuse." (Slip Op., at p. 25.) The court noted that the CSA itself provides that, "absent a positive conflict, none of the Act's provisions should be construed as indicating an intent" to exclude state law. (Id. at 24.) Here, industrial hemp is clearly not a recreational drug and, as AB 1147 is drafted, the federal government will be hard pressed to show a positive conflict between it and the CSA. AB 1147 does not undermine . . . efforts to combat recreational drug abuse. In fact, to specifically address any potential impact the bill might have on drug enforcement, AB1147 prohibits growth of industrial hemp outside a research or agricultural field crop setting. Any living Cannabis plant, whether hemp or marijuana, grown outside of these specified locations, is considered marijuana under AB 1147. Further, removal from the field of cultivation of leaves and flowering tops of the industrial hemp plant is prohibited to avoid spurious claims that marijuana is industrial hemp. These prohibitions should negate the bill's potential impact on enforcement of federal and state marijuana laws. Accordingly, AB 1147 is not in positive conflict with the CSA and, therefore, not subject to federal pre-emption. 8. The Hemp Industries Cases In two related cases - Hemp I and Hemp II - the Ninth Circuit Court of Appeals considered whether or not the scheduling of THC in Schedule I of the federal controlled substance schedules includes any parts of cannabis plant that contain THC. (Hemp I - (9th Cir. 2003) 333 F.3d 1082; (More) AB 1147 (Leno) PageZ Hemp II - (9th Cir.) 357 F.3d 1012.) Marijuana is separately scheduled under federal law. The definition of marijuana in the federal schedules excludes the mature stalks of the plant, sterile seed of the plant, and products made therefrom. The DEA has issued regulations stating that because THC is specifically included in the controlled substance schedules, any product intended for human consumption that contains THC is illegal. (The initial regulations stated that "any product that contains any amount of THC" is a controlled substance.) The Ninth Circuit in Hemp I and Hemp II essentially rejected the DEA regulations. Hemp I and II found that THC in the federal schedules refers to synthetic THC only, not THC that occurs naturally in the cannabis plant. The court found that if the scheduling of THC included naturally occurring THC there would be no need to separately schedule marijuana, as the psychoactive substance in the marijuana plant is THC. Further, Hemp II found that the DEA had improperly failed to follow essential procedures for issuing the regulations banning any product intended for human consumption that contained any THC, regardless of whether the product was essentially excepted from definition of marijuana in Schedule I. The DEA regulations have not been changed. The Ninth Circuit decisions in Hemp I and Hemp II are in effect. The DEA did not challenge the decisions. ***************