BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 1147| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 1147 Author: Leno (D), et al Amended: 8/7/06 in Senate Vote: 21 SENATE PUBLIC SAFETY COMMITTEE : 4-2, 6/20/06 AYES: Migden, Cedillo, Perata, Romero NOES: Poochigian, Margett SENATE AGRICULTURE COMMITTEE : 3-0, 6/29/06 AYES: Ducheny, Kuehl, Vincent NO VOTE RECORDED: Denham, Maldonado SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8 ASSEMBLY FLOOR : 44-32, 1/26/06 - See last page for vote SUBJECT : Industrial hemp SOURCE : Hemp Industries Association Vote Hemp DIGEST : This bill defines industrial hemp as a legitimate, valuable and non-psychoactive agricultural product. ANALYSIS : 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 CONTINUED AB 1147 Page 2 substances generally are subject to the most stringent restrictions in law. [21 U.S.C. Section 812] Existing law includes marijuana in the list of Schedule I controlled substances. [Section 11054 of the Health and Safety Code (HSC)] 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. [HSC Section 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. Sections 802(16) and 812(10)] Existing federal law separately defines "tetrahydrocannabinols" (THC) as a Schedule I substance. [21 U.S.C. Section 812 (17)] 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 AB 1147 Page 3 Industries v. DEA (2004) 357 F.3d 1012, 1015, quoting an earlier decision in a related case.) Existing federal Drug Enforcement Administration (DEA) 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] 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. [HSC Section 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. [HSC Section 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. [HSC Section 11357, subd. (c)] 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 AB 1147 Page 4 than 10 days, or both. [HSC Section 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. [HSC Section 11359] This bill defines "industrial hemp" as follows: 1. An agricultural field crop limited to the non-psychoactive types of the plant Cannabis sativa L., and the seeds produced therefrom. 2. Industrial hemp shall have no more than three-tenths of one percent (0.3 percent) THC contained in the dry flowering tops. 3. 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 a research setting. All industrial hemp seed sold for planting in California must be from a crop having no more than three-tenths of one percent THC contained in a random sampling of the dried flowering tops. 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: 1. Sampling shall occur as practicable when the THC content of the leaves surrounding the seeds is at its peak and shall commence as the seeds begin to mature, when the first seeds of approximately 50 percent of the plants are resistant to compression. 2. The entire fruit-bearing part of the plant, including AB 1147 Page 5 the seeds, shall be used as a sample. The sample cut shall be made directly underneath the inflorescence found in the top one-third of the plant. 3. The laboratory test shall be issued by a lab registered with the DEA. 4. The report shall state the percentage of THC in the sample and the time, date and location of the samples were taken. 5. The person obtaining the report shall retain it for two years. 6. The report shall be made available to law enforcement upon request. 7. A copy of the report shall be given to each person purchasing, transporting, et cetera, the oil, cake or seed of the plant. 8. 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 percent.) 9. If the laboratory test report indicates a percentage content of THC that is greater than three-tenths of one percent and does not exceed one percent, the person who grows industrial hemp shall submit additional samples for testing of the industrial hemp grown. 10.A person who grows industrial hemp shall destroy the industrial hemp grown upon receipt of a first laboratory test report indicating a percentage content of THC that exceeds one percent or a second laboratory test report pursuant to #9 above indicating a percentage content of THC that exceeds three-tenths of one percent. The destruction shall take place as soon as practicable but no later than 45 days after receipt of a laboratory test report that requires crop destruction pursuant to this section. 11.Number 10 above does not apply to industrial hemp grown in a research setting if the destruction of the AB 1147 Page 6 industrial hemp grown will impede the development of types of industrial hemp that will comply with the three-tenths of one percent THC limit established in this section. 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: 1. 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. 2. The United States Court of Appeals Ninth Circuit has ruled in 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. 3. The Controlled Substances Act of 1970 [21 U.S.C. Section 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 AB 1147 Page 7 for use, none of which apply to industrial hemp. 4. 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. 5. 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. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes SUPPORT : (Verified 8/9/06) Hemp Industries Association (co-source) Vote Hemp (co-source) Alice's Mountain Market Alta Vista Growers Alterna Professional Haircare Atlas Corporation Burcaw Chiropractic California Certified Organic Farmers California State Grange CDM Corporation Center for Healing Chico Enterprise-Record (editorial) City and County of San Francisco Community Alliance with Family Farmers Creative Research Management Dr. Bronner's Magic Soaps Eagle Trust Union Eco Goods Elk Creek Ranch EnvironGentle Environmental Wholesale Products Fiddler's Green Farm, Inc. French Meadow Bakery AB 1147 Page 8 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 Marysville Appeal-Democrat (editorial) New Hope Natural Media North American Hemp Company North American Industrial Hemp Council, Inc. Nutiva Orange County Register (editorial) Organic Ag Advisors Organic Consumers Association 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 The Living Temple Threshold Enterprises Ultra Oil for Pets Whole Balance OPPOSITION : (Verified 8/9/06) AB 1147 Page 9 Californians for Drug-Free Schools Save Our Society from Drugs California Narcotic Officers' Association ARGUMENTS IN SUPPORT : 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." ARGUMENTS IN OPPOSITION : Opponents of this bill state that since marijuana and hemp are so closely related, legalizing the cultivation of hemp would hinder law enforcement efforts to suppress marijuana. They also see this as a possible stepping stone to further relax regulations on all Cannabis plants. The federal government continues to consider the cultivation of hemp illegal. California would then conflict with federal law. California also faces challenges with the hemp industry competing against subsidized hemp growers in Chinese and European countries. ASSEMBLY FLOOR : AYES: Baca, Berg, Bermudez, Calderon, Canciamilla, Chan, Chavez, Chu, Cohn, Coto, De La Torre, DeVore, Dymally, Evans, Frommer, Goldberg, Hancock, Jerome Horton, Jones, Karnette, Klehs, Koretz, Laird, Leno, Levine, Lieber, Lieu, Liu, Matthews, Montanez, Mullin, Nation, Nava, AB 1147 Page 10 Oropeza, Pavley, Ridley-Thomas, Ruskin, Saldana, Salinas, Torrico, Vargas, Wolk, Yee, Nunez NOES: Aghazarian, Benoit, Blakeslee, Bogh, Cogdill, Daucher, Emmerson, Garcia, Harman, Shirley Horton, Houston, Huff, Keene, La Malfa, La Suer, Leslie, Maze, McCarthy, Mountjoy, Nakanishi, Niello, Parra, Plescia, Richman, Sharon Runner, Spitzer, Strickland, Tran, Umberg, Villines, Walters, Wyland NO VOTE RECORDED: Arambula, Bass, Haynes, Negrete McLeod RJG:mel 8/9/06 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****