BILL NUMBER: AB 684 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 1, 2007
AMENDED IN SENATE JULY 5, 2007
AMENDED IN SENATE JUNE 28, 2007
AMENDED IN SENATE JUNE 13, 2007
AMENDED IN ASSEMBLY MARCH 26, 2007
INTRODUCED BY Assembly Members Leno and DeVore
(Coauthors: Assembly Members Adams, Beall, Berg, Huffman, and
Saldana)
(Coauthor: Senator McClintock)
FEBRUARY 21, 2007
An act to amend Section 11018 of, and to add and repeal Section
11018.5 to, the Health and Safety Code, relating to industrial hemp.
LEGISLATIVE COUNSEL'S DIGEST
AB 684, as amended, Leno. Industrial hemp.
(1) Existing law makes it a crime to engage in any of various
transactions relating to marijuana, except as otherwise authorized by
law, such as the medical marijuana program. For the purposes of
these provisions, marijuana is defined as not including 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.
This bill would revise the definition of marijuana so that the
term would instead not include industrial hemp, as defined, except
where the plant is cultivated or processed for purposes not expressly
allowed for. The bill would define industrial hemp as an
agricultural field a fiber or oilseed crop that
is limited to the nonpsychoactive types of the plant Cannabis sativa
L. and the seed produced therefrom, having no more than 3/10 of 1%
tetrahydrocannabinol (THC) contained in the dried flowering tops, and
that is cultivated and processed exclusively for the purpose of
producing 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 or flowering tops extracted
therefrom), fiber, oil, or cake, or the sterilized seed of the plant
which is incapable of germination. This bill would also include
specified products listed in the Harmonized Tariff Schedule of the
United States within the definition of industrial hemp.
This bill would authorize a pilot program for the cultivation of
industrial hemp in 4 counties, as specified, until January 1, 2013.
The bill would require industrial hemp to be cultivated only from
seeds imported in accordance with federal law or from seeds grown in
California, as specified. The bill would also require the person
growing the industrial hemp to obtain, prior to the harvest of each
crop, a laboratory test of a random sample of the crop to determine
the amount of THC in the crop. The bill would require that the test
report contain specified language, that the testing laboratory
provide not less than 10 original signed copies to the cultivator,
and that the testing laboratory retain an original signed copy for a
minimum of 2 years. The report would be required to be retained for 2
years, and to be made available to law enforcement officials and
provided to purchasers, as specified. The bill would require all
industrial hemp seed sold for planting in California to be from a
crop having no more than 3/10 of 1% THC contained in a random
sampling of the dried flowering tops and tested under these
provisions, and would require the destruction of crops exceeding that
content, as specified.
The bill would provide that this definition of industrial hemp
shall not be construed to authorize the possession, outside of a
field of lawful cultivation, of resin, flowering tops, or leaves that
have been removed from the hemp plant, except to perform required
testing by an employee or agent of the testing laboratory; the
transportation or sale across state borders of any living plant of
Cannabis sativa L. or any seed of any type of Cannabis sativa L. that
is capable of germination, except in accordance with federal law; or
any cultivation of the industrial hemp plant that is not grown in
a research setting or as an agricultural field crop
an established agricultural research institution
. This bill would require the Attorney General and the Hemp
Industries Association to submit reports to the Legislature by
January 1, 2012, regarding the economic and law enforcement impacts
of industrial hemp cultivation. By revising the scope of application
of existing crimes relating to marijuana, this bill would impose a
state-mandated local program.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known and may be cited as the
"California Industrial Hemp Farming Act."
SEC. 2. The Legislature finds and declares all of the following:
(a) Industrial hemp is produced in at least 30 nations, including
Canada, Great 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 United States Court of Appeals for the Ninth Circuit has
ruled in Hemp Industries v. Drug Enforcement Administration, (9th
Cir. 2004) 357 F.3d 1012, that the federal Controlled Substances Act
of 1970 (21 U.S.C. Sec. 812(b)) explicitly excludes nonpsychoactive
hemp from the definition of marijuana, and the federal government has
declined to appeal that decision.
(c) The Controlled Substances Act of 1970 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 in the United States
have grown steadily since 1990 to two hundred seventy million dollars
($270,000,000) in 2005, increasing at a rate of approximately
twenty-six million dollars ($26,000,000) per year.
(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 the intermediate processing of hemp
seed, oil, and fiber could create jobs in close proximity to the
fields of cultivation.
(f) In 1999, the Assembly passed House Resolution 32, which
resolved that "the domestic production of industrial hemp can help
protect California California's
environment, contribute to the growth of the state economy, and be
regulated in a manner that will not interfere with the enforcement of
marijuana laws."
(g) Assessment of the economic benefits of industrial hemp
cultivation and determination of possible impacts on the enforcement
of laws prohibiting illicit marijuana cultivation are important
concerns; and, therefore, it is the intent of the Legislature to
assess these benefits and impacts by creating a pilot program for
both industrial hemp research by established agricultural research
institutions and for the agricultural production of industrial hemp
in four counties.
(h) It is the intent of the Legislature that law enforcement not
be burdened with tetrahydrocannabinol (THC) testing of industrial
hemp crops when cultivation is in compliance with Section 11018.5,
therefore, the cultivation of industrial hemp will be tightly
controlled by requiring the following:
(1) Farmers shall not cultivate industrial hemp in acreages
smaller than five acres and no acreage of industrial hemp shall be
comprised of plots smaller than one acre. Horticulture, ornamental,
or clandestine cultivation are expressly prohibited.
(2) Farmers are required prior to harvest to obtain a laboratory
test report from a federally registered laboratory documenting that
the THC content of their crop is within the legal limit and farmers
must destroy crops that fail the THC test.
(3) Farmers must retain an original copy of the THC test report
for the planting seed and the harvested crop for two years, make
original copies available to law enforcement officials upon request,
and are required to provide an original copy to each person
purchasing, transporting, or otherwise obtaining the fiber, oil,
cake, or seed of the plant from the farmer.
(4) Although they have no psychoactive effect, any resin,
flowering tops, or leaves of the industrial hemp plant that are
removed from the lawful field of cultivation shall be, by definition,
marijuana and subject to prosecution. Farmers should take care to
ensure that all flowering tops and leaves remain in the lawful field
of cultivation after the harvest of seed or fiber. There is no lawful
reason to harvest, collect, or process the flowering tops of
industrial hemp.
(5) Except for an agent or employee of a federally registered
laboratory involved in THC testing, no person may lawfully possess
the flowering tops or leaves of industrial hemp outside of the field
of cultivation and the flowering tops or leaves shall be considered
marijuana regardless of whether they are in fact industrial hemp.
Therefore, no testing of the flowering tops or leaves of any type of
cannabis found outside the lawful field of industrial hemp
cultivation need be tested by law enforcement for THC content to
determine during a drug seizure if the cannabis in question is
marijuana or industrial hemp.
(6) In addition to plant structure, height, and method of
planting, the horticultural tending of cannabis plants indicates to
law enforcement that it is marijuana and not industrial hemp. Signs
of horticultural tending include, but are not limited to, pathways or
rows within the field to provide access to each plant, the pruning
of individual plants, or the culling of male plants from the field.
SEC. 3. Section 11018 of the Health and Safety Code is amended to
read:
11018. "Marijuana" means 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 industrial hemp, as defined in Section 11018.5,
except where the plant is cultivated or processed for purposes not
expressly allowed for by Section 11018.5.
SEC. 4. Section 11018.5 is added to the Health and Safety Code, to
read:
11018.5. (a) (1) "Industrial hemp" means an agricultural
field a fiber or oilseed crop that is limited
to nonpsychoactive types of the plant Cannabis sativa L. and the seed
produced therefrom, having no more than three-tenths of 1 percent
tetrahydrocannabinol (THC) contained in the dried flowering tops, and
that is cultivated and processed exclusively for the purpose of
producing the mature stalks of the plant, 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.
(2) Except when grown by an established agricultural research
institution, industrial hemp shall be grown only as a densely planted
fiber or oilseed crop in acreages of not less than five acres and no
portion of an acreage of industrial hemp shall include plots of less
than one contiguous acre. Horticultural, ornamental, and clandestine
cultivation of industrial hemp is prohibited.
(2)
(3) Industrial hemp shall include products imported
under the first revision of the 2007 Harmonized Tariff Schedule of
the United States (HTSUS), Section 1202 et seq. of Title 19 of the
United States Code, including "hemp seed" per subheading
1207.99.02.20, "hemp oil" per subheading 1515.90.80.10, "true hemp"
per subheadings 5302.10.00.00 and 5302.90.00.00, "true hemp yarn" per
subheading 5308.20.00.00, and "woven fabrics of true hemp fibers"
per subheading 5311.00.40.10.
(b) The provisions of this section shall apply only in Imperial,
Kings, Mendocino, and Yolo Counties, except in the case of industrial
hemp raw materials already legal under federal law, the
transportation of seed capable of germination within California, and
the transportation of samples for testing at a laboratory registered
with the federal Drug Enforcement Administration pursuant to
subdivision (c). (d).
(c) Industrial hemp shall be cultivated only
from seeds imported in accordance with the laws of the United States
or from seeds grown in California from feral plants, cultivated
plants, or plants grown in a research setting.
by an established agricultural research institution.
(1) All industrial hemp seed sold for
planting in California shall be from a crop having
that is grown in California, has no more than
three-tenths of 1 percent THC contained in a random sampling of the
dried flowering tops and that is tested under the
provisions of subdivision (c). (d). A person
who purchases industrial hemp seed for planting shall
retain for two years following the harvest the original laboratory
test report provided at purchase pursuant to subdivision (d), and
shall make the test report available for inspection by law
enforcement upon request.
(2) All industrial hemp seed from a crop or source not tested
under subdivision (d) because it was produced by feral plants or
because it is the initial California seed stock of a type of planting
seed imported in accordance with the laws of the United States,
shall be planted and cultivated only by an established agricultural
research institution.
(c)
(d) A person who grows industrial hemp under this
section shall prior to the harvest of each crop and as provided below
obtain a laboratory test report indicating the THC levels of a
random sampling of the dried flowering tops of the industrial hemp
grown.
(1) Sampling shall occur as soon 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 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) Samples to perform the testing pursuant to this section shall
be collected and transported only by an employee or agent of a
laboratory that is registered with the federal Drug Enforcement
Administration.
(4) The laboratory test report shall be issued by a laboratory
registered with the federal Drug Enforcement Administration, shall
state the percentage content of THC, shall indicate the date and
location of samples taken, and shall state the Global Positioning
System (GPS) coordinates and total acreage of the crop. If the
laboratory test report indicates a percentage content of THC that is
equal to or less than three-tenths of 1 percent, 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
percent, the words "FAILED AS CALIFORNIA INDUSTRIAL HEMP" shall
appear at or near the top of the laboratory test report.
(5) If the laboratory test report indicates a percentage content
of THC that is equal to or less than three-tenths of 1 percent, the
laboratory shall provide the person who requested the testing not
less than 10 original copies signed by an employee authorized by the
laboratory and shall retain one or more original copies of the
laboratory test report for a minimum of two years from its date of
sampling.
(6) If the laboratory test report indicates a percentage content
of THC that is greater than three-tenths of 1 percent and does not
exceed 1 percent, the person who grows industrial hemp shall submit
additional samples for testing of the industrial hemp grown.
(7) 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 1 percent or a
second laboratory test report pursuant to paragraph (6) indicating a
percentage content of THC that exceeds three-tenths of 1 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.
(8) Paragraph (7) does not apply to industrial hemp grown
in a research setting by an established agricultural
research institution 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 percent THC limit established
in this section.
(9) A person who intends to grow industrial hemp and complies with
this section shall not be prosecuted for the cultivation or
possession of marijuana as a result of a laboratory test report that
indicates a percentage content of THC that is greater than
three-tenths of 1 percent but does not exceed 1 percent.
(10) Paragraph (9) does not apply to industrial hemp grown by an
established agricultural research institution. Established
agricultural research institutions shall be permitted to cultivate or
possess industrial hemp with a laboratory test report that indicates
a percentage content of THC that is greater than three-tenths of 1
percent if that cultivation or possession contributes to the
development of types of industrial hemp that will comply with the
three-tenths of 1 percent THC limit established in this section.
(9)
(11) The person who grows industrial hemp shall retain
an original signed copy of the laboratory test report for two years
from its date of sampling, make an original signed copy of the
laboratory test report available to law enforcement officials upon
request, and shall provide an original copy of the laboratory test
report to each person purchasing, transporting, or otherwise
obtaining from the person who grows industrial hemp the fiber, oil,
cake, or seed of the plant.
(d)
(e) Notwithstanding subdivision (a), this section shall
not be construed to authorize and thereby prohibits the following:
(1) The possession, outside of a field of lawful cultivation, of
resin, flowering tops, or leaves that have been removed from the hemp
plant, except as is necessary for an employee or agent of a
laboratory registered with the federal Drug Enforcement
Administration to perform the testing pursuant to subdivision
(c) (d) .
(2) The transportation or sale across state borders of any living
plant of Cannabis sativa L. or any seed of any type of Cannabis
sativa L. that is capable of germination, except in accordance with
the laws of the United States.
(3) Any cultivation of the industrial hemp plant that is not grown
in a research setting or as an agricultural field crop.
(3) Any horticultural, ornamental, or clandestine cultivation of
the industrial hemp plant, any cultivation in acreages of less than
five acres, or any acreage comprised of plots of less than 1
contiguous acre, except when the industrial hemp is grown by an
established agricultural research institution.
(e)
(f) Not later than January 1, 2012, the Attorney
General shall report to the Assembly and Senate Committees on
Agriculture and the Assembly and Senate Committees on Public Safety
the reported incidents, if any, of the following:
(1) A field of industrial hemp being used to disguise marijuana
cultivation.
(2) Claims in a court hearing by person other that
persons other than those exempted in subdivision
(d) (e) that marijuana is industrial
hemp.
(f)
(g) Not later than January 1, 2012, the Hemp Industries
Association shall report to the Assembly and Senate Committees on
Agriculture and the Assembly and Senate Committees on Public Safety
the following:
(1) The economic impacts of industrial hemp cultivation,
processing, and product manufacturing in California.
(2) The economic impacts of industrial hemp cultivation,
processing, and product manufacturing in other states that may have
permitted industrial hemp cultivation.
(g)
(h) This section shall remain in effect until January
1, 2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 5. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.