BILL ANALYSIS AB 1147 Page 1 GOVERNOR'S VETO AB 1147 (Leno) As Amended August 7, 2006 2/3 vote ----------------------------------------------------------------- |ASSEMBLY: |44-32|(January 16, |SENATE: |26-13|(August 16, | | | |2006) | | |2006) | ----------------------------------------------------------------- ----------------------------------------------------------------- |ASSEMBLY: |44-29|(August 21, | | | | | | |2006) | | | | ----------------------------------------------------------------- Original Committee Reference: PUB. S. SUMMARY : Clarifies the definition of "marijuana" contained in the Uniformed Controlled Substance Act (CSA) to exclude industrial hemp. The Senate amendments : 1)Include in the definition of "industrial hemp" the seeds produced from non-psychoactive varieties of the plant Cannabis sativa L. 2)Delete the requirement that the industrial hemp be cultivated from seeds originating in the State of California. 3)Require the industrial hemp be cultivated only from seeds imported in accordance with the laws of the United States (U.S.) or from seeds grown in California from feral plants, cultivated plants, or plants grown in a research setting. 4)Mandate a person who grows industrial hemp prior to the harvest of each crop to obtain a laboratory test report indicating the Tetrahydrocannabinol (THC) levels of a random sampling of the dried flowering tops of the industrial hemp grown. AB 1147 Page 2 5)Require a laboratory test report be issued by a laboratory registered with the federal Drug Enforcement Administration to state the percentage content of THC, and indicate the date and location of samples taken. 6)Specify that if the laboratory test report indicates a percentage content of THC that is equal to or less than three-tenths of 1%, the words "PASSED AS CALIFORNIA INDUSTRIAL HEMP" shall appear at or near the top of the laboratory test report. If the laboratory test report indicates a percentage content of THC that is greater than three-tenths of 1%, the words "FAILED AS CALIFORNIA INDUSTRIAL HEMP" shall appear at or near the top of the laboratory test report. 7)Provide that the person who grows industrial hemp shall retain a copy of the laboratory test report for two years from its date of sampling, make the laboratory test report available to law enforcement officials upon request, and shall provide a copy of the laboratory test report to each person purchasing, transporting, or otherwise obtaining the oil, cake, or seed of the plant. 8)Clarify that notwithstanding the provisions of this bill, a person may not engage in 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 unless it is necessary for a grower, agent of a grower, employee or agent of an employee of a laboratory registered with the federal Drug Enforcement Administration to perform the laboratory testing provided by this bill. 9)Except conduct in accordance with the laws of the U.S. from the prohibition against transportation or sale across state borders of seed of any variety of Cannabis sativa L. that is capable of germination. 10)Provide that all industrial hemp seed sold for planting in California shall be from a crop having no more than three-tenths of 1% THC contained in a random sampling of the AB 1147 Page 3 dried flowering tops and tested, as specified. 11)State sampling shall occur as practicable when the THC content of the leaves surrounding the seeds is at its peal and shall commence as the seeds being to mature, when the first seeds of approximately 50% of the plants are resistant to compression. 12)Provide that the entire fruit-bearing part of the plant including 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. 13)Specify if the required laboratory test report indicated a percentage content of the THC that is greater than three-tenths of 1% and does not exceed 1%, the person who grows industrial hemp shall submit additional samples for testing. 14)Require a person to destroy industrial hemp grown upon receipt of a first laboratory test report indicating a percentage content of THC that exceeds 1% or a second laboratory test report, as specified, indicating a percentage content of THC that exceeds three-tenth of 1%. The destruction shall take place as soon as practicable but no later than 45 days after the receipt of a laboratory test report that requires crop destruction. 15)State crop destruction, as defined, shall not apply to industrial hemp grown in a research setting if the destruction of the industrial hemp grown will impede the development of types of industrial hemp that will comply with the three-tenths of 1% THC limit, as specified. 16)Make clarifying, technical amendments. 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 AB 1147 Page 4 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 there from), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. 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. AS PASSED BY THE ASSEMBLY , this bill: 1)Defined "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% 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. 2)Stated 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)Prohibited 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. 4)Found and declared the following: a) Industrial hemp is produced in at least 30 nations AB 1147 Page 5 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; b) The U.S. 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.; c) 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 for use, none of which apply to industrial hemp; d) 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; and, e) 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 : According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs. COMMENTS : 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." AB 1147 Page 6 "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." Please see the policy committee analysis for full discussion of this bill. GOVERNOR'S VETO MESSAGE : I appreciate and applaud the Legislature's interest in actually expanding California's economy; however, I am concerned about the impact of the particular type of expansion that is being proposed. I recognize and am proud of the fact that California is a national and world leader in the production of high quality agricultural commodities. Our state has a rich agricultural environment and we must strive to protect and promote farming, ranching, and agri-business in California, while preserving natural resources and protecting consumers. Given these facts, I would like to support the expansion of a new agriculture commodity in this state. Unfortunately, I am very concerned that this bill would give legitimate growers a false sense of security and a belief that production of 'industrial hemp' is somehow a legal activity under federal law. Under current federal statutes, t here is no definition of 'industrial hemp' nor is there a distinction between cannabis plants based on Tetrahydrocannabinols (THC) content as delineated in AB 1147 Page 7 AB 1147. In fact, under federal law, all cannabis plants, regardless of variety or THC content, are simply considered to be 'marihuana', which is a federally regulated Schedule I controlled substance. Any person in the United States, who wishes to grow cannabis plants for any purpose, including industrial purposes, must first obtain permission and register with the U. S. Drug Enforcement Administration (DEA). Failure to do so would be a violation of federal law and could subject an individual to criminal penalties. I understand that there are several court decisions that may cloud this issue such as Hemp Industries Association v. DEA , 357 F.3d 1012, 1018 (9th Cir.2004) and United States v. White Plume , 447 F.3d 1067 (8th Cir.2006). Yet, no court has specifically rules that a live cannabis plant is a non-controlled substance or that farming these plants is not a regulated activity. As a result, it would be improper to approve a measure that directly conflicts with current federal statutes and court decisions. This only serves to cause confusion and reduce public confidence in our government system. Finally, California law enforcement has expressed concerns that implementation of this measure could place a drain on their resources and cause significant problems with drug enforcement activities. This is troubling given the needs in this state for the eradication and prevention of drug production. In the future, I would encourage the Legislature to work with state and federal law enforcement agencies to craft a measure that would reduce the burden on law enforcement agencies and would comply with federal law in order to avoid the unnecessary prosecution of unwitting individuals in this state." Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916) 319-3744 AB 1147 Page 8 FN: 0018032