BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Gloria Romero, Chair A 2007-2008 Regular Session B 6 8 4 AB 684 (Leno) As Amended June 28, 2007 Hearing date: July 10, 2007 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 AB 1147 (Leno) - 2006, vetoed Support: Agriculture and Land-Based Training Association; American Federation of State, County, and Municipal Employees; California Certified Organic Farmers; California Coastkeeper Alliance; California League of Conservation Voters; California State Grange; Community Alliance With Family Farmers; Dynamic Nutraceuticals, Inc; Fiddler's Green Farm, Inc; Hemp Industries Association; Imperial County Farm Bureau; Nutiva Organic Consumers Association; Planning and Conservation League; Sensuous Beauty, Inc; Sierra Club California; Ultra Oil; Whole Foods Market Opposition:Association for Los Angeles Deputy Sheriffs; California Fraternal Order of Police; California Narcotic Officers' Association; California Peace Officers' Association; California Police Chiefs (More) AB 684 (Leno) PageB Association; Long Beach Police Officers Association; Los Angeles County District Attorney's Office, Los Angeles County Professional Peace Officers Association; Riverside Sheriffs' Association; Santa Ana Police Officers Association Assembly Floor Vote: Ayes 41 - Noes 29 KEY ISSUES SHOULD "INDUSTRIAL HEMP" BE DEFINED AS AN AGRICULTURAL FIELD CROP LIMITED TO THE NON-PSYCHOACTIVE VARIETIES OF THE PLANT CANNABIS SATIVA L., AND THE SEEDS THEREOF, HAVING NO MORE THAN THREE TENTHS OF 1% TETRAHYDROCANNABINOL (THC) IN THE DRY FLOWERING TOPS, THAT IS CULTIVATED AND PROCESSED EXCLUSIVELY FOR THE PURPOSE OF PRODUCING THE MATURE STALKS OF THE PLANT AND BY-PRODUCTS OF THE STALK AND SEED, AND AS SPECIFIED THROUGH REFERENCES TO APPLICABLE FEDERAL TARIFF STATUTES? SHOULD "MARIJUANA" BE DEFINED IN STATUTE TO EXCLUDE INDUSTRIAL HEMP? 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 MAKE HEMP PRODUCTS; AND THAT CONTROLLED SUBSTANCE SCHEDULING DEFINITIONS AND CONCEPTS DO NOT APPLY TO INDUSTRIAL HEMP, AS SPECIFIED? PURPOSE The purposes of this bill are to define 1) "industrial hemp" as a legitimate, valuable and non-psychoactive agricultural product; 2) define marijuana as excluding industrial hemp; 3) allow cultivation and processing of industrial hemp, under specified regulations; 4) impose a testing regimen to insure any particular crop has no psychoactive properties; and 5) essentially create a pilot program for industrial hemp in (More) AB 684 (Leno) PageC Imperial, Kings, Mendocino and Yolo Counties. 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 684 (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 decision, 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).) Existing law states that except as authorized by law, every -------------------------- <1> It appears that this regulation, perhaps in light of the Hemp I and II decisions, is not currently being enforced. (More) AB 684 (Leno) PageE 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 provides that industrial hemp shall include products imported under the first revision of the 2007 Harmonized Tariff Schedule of the United States, including "hemp seed," "hemp oil," "true hemp" and "woven fabrics of true hemp," as specified in statute. This bill provides that the statutory definition of "marijuana" does not include industrial hemp. 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 (More) AB 684 (Leno) PageF 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. The laboratory test shall be issued by a lab registered with the DEA and samples shall be collected and transported only by an employee or agent of the DEA-registered laboratory. The report shall state the percentage of THC in the sample and the time, date and location of the samples taken and the GPS coordinates and total acreage of the crop. The person who grew the industrial hemp shall retain an original, signed copy for at least two years. The report shall be made available to law enforcement upon request. The report shall state, at or near the top of the report, whether it passes or failed the standard for industrial hemp. (The sample can have a THC content of no more than 0.3%.) If the report states that the sample passed, the laboratory shall provide the person who requested the report with at least 10 original copies signed by an authorized laboratory employee. The laboratory shall retain at least one original copy for at least 2 years. This bill provides that if the sample exceeds 0.3%, but does not exceed 1%, THC content, the person submitting the sample shall submit additional samples for testing. The person submitting the sample shall destroy the crop if second testing indicates a THC content over 0.3%. This bill provides that the person who submitted a sample for testing shall destroy the crop if the first test indicates a THC content over 1%. 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 (More) AB 684 (Leno) PageG field of cultivation and separated from the other constituent parts of the industrial hemp plant. This bill provides that a crop need not be destroyed if the crop was grown in a research setting if the destruction will impede the development of industrial hemp that will comply with the 0.3% THC standard. 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 prohibits possession, outside a field of lawful cultivation, of resin, flowering tops, or leaves that have been removed from the hemp plant, except as necessary for an authorized laboratory employee or agent to test the material for THC content. 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 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 (More) AB 684 (Leno) PageH 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 $270 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. Assessment of the economic benefits of industrial hemp cultivation and the possible impacts on enforcement laws concerning illicit marijuana are important concerns. Thus, a pilot program should be implemented to allow agricultural production of industrial hemp in four counties and for research by "established agricultural research institutions." This bill provides that the program in this bill shall apply only in the Counties of Imperial, Kings, Mendocino and Yolo, except as to industrial hemp raw materials that are legal under federal law, transportation of seeds capable of germination within California and the transportation of samples for testing at a DEA-registered laboratory. This bill provides that the Attorney General, on or before January 1, 2012, shall report to the Assembly and Senate Agriculture and Public Safety Committees on any reported incidents of the following: A field of industrial hemp being used to disguise (More) AB 684 (Leno) PageI marijuana cultivation; and Claims in a court hearing that marijuana is industrial hemp, except where the person making the claim is subject to a specified exemption. This bill provides that the Hemp Industries Association, not later than January 1, 2012, shall report to the Assembly and Senate Committees on Agriculture and Public Safety the following: Economic impacts of industrial cultivation, processing and products in California; and Economic impacts of industrial hemp cultivation, processing and products in other states. This bill includes a January 1, 2013 sunset. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS California currently faces an extraordinary and severe prison and jail overcrowding crisis. California's prison capacity is nearly exhausted as prisons today are being operated with a significant level of overcrowding.<2> In addition, California's jails likewise are significantly overcrowded. Twenty California counties are operating under jail population caps. According to the State Sheriffs' Association, "counties are currently releasing 18,000 pre and post-sentenced inmates every month and many counties are so overcrowded they do not accept misdemeanor bookings in any form, . . . ."<3> In January of this year the Legislative Analyst's office summarized the trajectory of California's inmate population over the last two decades: During the past 20 years, jail and prison populations have increased significantly. County jail populations have increased by about 66 percent over that period, an amount that has been limited by court-ordered population caps. The -------------------- <2> Analysis of the 2007-08 Budget Bill: Judicial and Criminal Justice, Legislative Analyst's Office (February 21, 2007). <3> Memorandum from CSSA President Gary Penrod to Governor, February 14, 2007. (More) AB 684 (Leno) PageJ prison population has grown even more dramatically during that period, tripling since the mid-1980s.<4> The level of overcrowding, and the impact of the population crisis on the day-to-day prison operations, is staggering: As of December 31, 2006, the California Department of Corrections and Rehabilitation (CDCR) was estimated to have 173,100 inmates in the state prison system, based on CDCR's fall 2006 population projections. However, . . . the department only operates or contracts for a total of 156,500 permanent bed capacity (not including out-of-state beds, . . . ), resulting in a shortfall of about 16,600 prison beds relative to the inmate population. The most significant bed shortfalls are for Level I, II, and IV inmates, as well as at reception centers. As a result of the bed deficits, CDCR houses about 10 percent of the inmate population in temporary beds, such as in dayrooms and gyms. In addition, many inmates are housed in facilities designed for different security levels. For example, there are currently about 6,000 high security (Level IV) inmates housed in beds designed for Level III inmates. . . . (S)ignificant overcrowding has both operational and fiscal consequences. Overcrowding and the use of temporary beds create security concerns, particularly for medium- and high-security inmates. Gyms and dayrooms are not designed to provide security coverage as well as in permanent housing units, and overcrowding can contribute to inmate unrest, disturbances, and assaults. This can result in additional state costs for medical treatment, workers' compensation, and staff overtime. In addition, -------------------- <4> California's Criminal Justice System: A Primer. Legislative Analyst's Office (January 2007). (More) AB 684 (Leno) PageK overcrowding can limit the ability of prisons to provide rehabilitative, health care, and other types of programs because prisons were not designed with sufficient space to provide these services to the increased population. The difficulty in providing inmate programs and services is exacerbated by the use of program space to house inmates. Also, to the extent that inmate unrest is caused by overcrowding, rehabilitation programs and other services can be disrupted by the resulting lockdowns.<5> As a result of numerous lawsuits, the state has entered into several consent decrees agreeing to improve conditions in the state's prisons. As these cases have continued over the past several years, prison conditions nonetheless have failed to improve and, over the last year, the scrutiny of the federal courts over California's prisons has intensified. In February of 2006, the federal court appointed a receiver to take over the direct management and operation of the prison medical health care delivery system from the state. Motions filed in December of 2006 are now pending before three federal court judges in which plaintiffs are seeking a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. Medical, mental health and dental care programs at CDCR each are "currently under varying levels of federal court supervision based on court rulings that the state has failed to provide inmates with adequate care as required under the Eighth Amendment to the U.S. Constitution. The courts found key deficiencies in the state's correctional programs, including: (1) an inadequate number of staff to deliver health care services, (2) an inadequate amount of clinical space within prisons, (3) failures to follow nationally recognized health care guidelines for treating inmate-patients, and (4) poor coordination between health care staff and custody staff."<6> This bill does not appear to aggravate the prison and jail --------------------------- <5> Analysis 2007-08 Budget Bill, supra, fn. 1. <6> Primer, supra, fn. 4. (More) AB 684 (Leno) PageL overcrowding crisis outlined above. COMMENTS 1. Need for This Bill According to the author: AB 684 clarifies that California law permits the cultivation of industrial hemp, a variety of Cannabis that has no psychoactive qualities because it contains less than three-tens of one percent THC. Marijuana usually ranges from 3% to 15% THC. Industrial Hemp Products are Legally Sold in All 50 States Current state and federal law exempt industrial hemp stalk, fiber, oil, and non-viable seed from the definition of marijuana. These products are legally imported into the United States and sold in all 50 states. Industrial hemp is grown and used throughout the world for food, body care products, automotive parts, building materials, paper, clothing, canvas, et cetera. Hemp fibers are extremely strong. Oil produced from hemp seeds contains an unusually healthy balance of amino acids. Hemp oil can replace artery-clogging trans fats. A Fast Growing Industry, but Farmers Left Out According to a study commissioned by the Hemp Industries Association, the U.S. industrial hemp market was $270 million in 2005 and is growing at a rate of $26 million a year. A large portion of those sales are by California manufacturers who must import industrial hemp. California farmers are not benefiting from this growing market because they are (More) AB 684 (Leno) PageM prohibited from growing industrial hemp. Significant Additional Agricultural Benefits Industrial hemp is an excellent rotational crop because it naturally reduces nematodes (roundworms, cutworms, et cetera) while its dense growth smothers weeds. Hemp requires less water and agricultural chemicals than other crops and has deep roots that leave the soil in excellent condition for the next crop. Looks Different from Marijuana The primary reason industrial hemp has not been grown in the United States since the 1950's is a perceived similarity to marijuana; however, the plants are very different. Industrial hemp plant is a stalk similar to bamboo, has few branches, has been bred for maximum production of seed, and grows up to 16 feet tall. It is planted in densities of 100 to 300 plants per square yard. Marijuana is a tropical variety of cannabis that grows to a height of six feet tall and has been bred to have many branches to maximize flowering and minimize seeding. It is planted with wide spaces between plants to maximize flowering. From the moment seedlings sprout from the ground, a crop of industrial hemp looks different from marijuana. Law Enforcement Provisions Balanced with Farmers' Concerns AB 684 has been crafted to comply with federal law; minimize impact to law enforcement; and utilize a smart, largely self-regulating mechanism without undue burdens on farmers. We worked closely with the Farm Bureau to ensure that our regulatory measures make sense for farmers, while not harming law enforcement marijuana interdiction. The bill only permits (More) AB 684 (Leno) PageN cultivation of industrial hemp when grown as an agricultural field crop or in a research setting. Back yard or horticultural cultivation is prohibited. Any clandestine grove of cannabis will be considered marijuana regardless of THC content. Strict Testing and Documentation Requirements Prior to harvest, farmers must obtain a laboratory test report from a federal DEA-registered laboratory documenting the crop's THC content. They must retain an original copy for two years, make it available to law enforcement officials, and provide an original copy to each person purchasing, transporting, or otherwise obtaining the products of the plant. If you don't pass, you can't sell your product. Defendants Cannot Claim that Marijuana Is Hemp The valuable part of the marijuana plant is the flowering tops. Under this bill, all flowering tops of the industrial hemp plant that are removed from the field are still defined as "marijuana". Although hemp flowers have no psychoactive effects and no legal commercial application, this control prevents spurious claims that marijuana is hemp in drug busts. The bright-line definitions and requirements in this bill ensure that law enforcement will not be negatively impacted. Our goal is to relieve California farmers of the over-reaching prohibition on industrial hemp cultivation. California must assert its right to regulate industrial hemp as permitted by the United States Constitution, the United States Congress, and the 2004 9th United States Circuit Court decision in Hemp Industries Association v. DEA. Until we do, our farmers will be denied access to a profitable and beneficial crop; our industry will pay a premium to import hemp seed, fiber, and oil; and our state will be denied the environmental benefits of a crop that can provide food, clothing, shelter, and energy." (More) AB 684 (Leno) PageO 2. 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. (Note that criticism of the Purdue study is discussed at the end of this comment.) 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." 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 (More) AB 684 (Leno) PageP 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 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 (More) AB 684 (Leno) PageQ 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. 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. (More) AB 684 (Leno) PageR 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. Opponents' Response to Purdue Study Opponents of this bill argued, in reference to AB 1147 (Leno) (the predecessor to this bill in the previous legislative session) that the Purdue study included an industry bias. The opponents state that the study was funded by the hemp industry. Committee staff has re-reviewed the study online and found no specific statement that the study was funded by industry sources. In any event, the references for the study were very voluminous, and included academic and government sources. The study did caution farmers that hemp was not a panacea, that hemp markets were not mature and that rushing new crops into production has been a traditional source of financial trouble for farmers. The study noted: "Hemp is currently a most uncertain crop, but has such a diversity of possible uses, is being promoted by extremely enthusiastic market developers, and attracts so much attention that it is likely to carve out a much larger share of the North American marketplace than its (More) AB 684 (Leno) PageS detractors are willing to concede." Opponents argued that other studies, including studies from researchers in Kentucky and Wisconsin, have essentially dismissed the economic potential of hemp. The opponent's argument in this regard may be overstated. The Wisconsin study cited by opponents does conclude that hemp is not a panacea for farmers and the improved farm income from hemp would not likely be realized for 4-5 years. The study did conclude that hemp would be "slightly more profitable than traditional row crops, but less profitable than specialty crops such as tobacco, fruits and vegetables." It cautioned that widespread planting of hemp could overwhelm a market that is currently quite small. A summary of the study published by the University of Wisconsin stated: Low grain prices have farmers looking for alternative crops, and industrial hemp has generated a great deal of interest. The crop grows under a wide variety of soil and climatic conditions, and requires few pesticides. When grown as part of a crop rotation, industrial hemp can break up pest cycles and help growers reduce the pesticides they apply to traditional crops. In the most comprehensive overview to date, Fortenbery and his research colleague Michael Bennett, both with the College of Agricultural and Life Sciences , reviewed more than 75 studies, articles and reports about industrial hemp. "We tried to bring together all the knowledge that has been accumulated over the last 100 years," Fortenbery says. The study also identified areas where research is needed if American farmers are to grow the crop profitably. (More) AB 684 (Leno) PageT "If growing industrial hemp became legal overnight, it would be a useful crop for a few growers. However, it is not likely to improve farm revenue for at least four or five years," Fortenbery says. "Studies indicate that it would be slightly more profitable than traditional row crops but less profitable than specialty crops such as tobacco, fruits and vegetables." Fortenbery and Bennett caution that widespread production of industrial hemp would drive down prices by quickly swamping the small but growing North American market. The report suggests that just 25,000 acres to 35,000 acres of industrial hemp could meet the current North American demand for hemp fiber and seed. Fewer than 100 farms could supply that market, says Fortenbery. With such a small market, growers would be vulnerable to wide price fluctuations, he says. (Emphasis added.) 3. 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 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. Hemp contains an antagonist to THC that cancels the effects of (More) AB 684 (Leno) PageU THC - smoking or otherwise ingesting any amount of hemp could not intoxicate someone 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 cigarettes of B as one would from smoking one cigarette of A. Simply stated, one could smoke a room full of industrial hemp and not obtain a "high." It has been reported that CBD can be used to synthetically produce THC. However, as stated in the Purdue study, "the (More) AB 684 (Leno) PageV 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 anywhere 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 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 (More) AB 684 (Leno) PageW 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. 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) AB 684 (Leno) PageX 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. 4. 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 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 (More) AB 684 (Leno) PageY 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 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, in part, "There are a number of significant concerns regarding the legality of producing industrial hemp in the (More) AB 684 (Leno) PageZ United States." In 2007, 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. It appears that this measure (110 H.R. 1009) is currently still pending in Congress. A similar bill in 2005-2006 did not pass. This bill (AB 684) 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. 5. Industrial Hemp Definition in AB 684 - 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)<7> to specifically provide that marijuana does not include "industrial hemp," except where industrial hemp is cultivated or processed contrary to the express provisions in this bill. The bill specifically defines industrial hemp thus: "Industrial hemp" means an agricultural field crop that is limited to nonpsychoactive types of the plant Cannabis sativa L. and the seed produced therefrom, having no more than [0.3%] 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, ---------------------- <7> Marijuana is defined as "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. (Health & Saf. Code 11018.) (More) AB 684 (Leno) PageA 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. Industrial hemp shall include products imported under the first revision of the 2007 Harmonized Tariff Schedule of the United States (HTSUS), [including hemp seed, et cetera, as specified]. 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 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).) 6. 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 (More) AB 684 (Leno) PageB 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. One issue presented by this bill is whether or not the California law can define "marijuana" differently than federal law. In particular, this bill provides that marijuana does not include industrial hemp. Such a distinction does not appear to exist in 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. (More) AB 684 (Leno) PageC 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.) 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 (More) AB 684 (Leno) PageD 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 may be 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 if the THC content of the in the "dried flowering tops" of the plant does not exceed 0.3%. 7. The Hemp Industries Cases and White Plume Case 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; 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 (More) AB 684 (Leno) PageE 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. The Federal 8th Circuit Court of Appeals has ruled that members of the Oglala Sioux Indian tribe on the Pine Ridge Reservation in South Dakota could not grow cannabis plants with less than 1% THC content. (U.S. v. White Plume (8th Cir. 2006) 447 F.3d 1067.) Tribal law had been amended to allow the cultivation of industrial hemp, which was defined as cannabis plants that have been traditionally harvested for fiber and seed and that have a THC content under 1%. Further, tribal law excluded from the definition of marijuana, cannabis plants with a THC content under 1%. Alex White Plume grew industrial hemp under contract with a hemp processing company. The federal government confiscated and destroyed the crop. White Plume grew two more crops that were similarly confiscated and destroyed. The federal government then sought and obtained an injunction to permanently enjoin White Plume from "manufacturing or distributing cannabis." (Id. at p. 1070.) The Court of Appeals upheld the injunction, finding that industrial hemp, as defined in the applicable tribal law, was subject to the Controlled Substances Act (CSA). The court essentially found that federal law bars growing of cannabis plants because whole, growing cannabis plants are (More) AB 684 (Leno) PageF included in the definition of marijuana.<8> Federal law does exempt from the definition of marijuana the "mature stalks of [cannabis], fiber produced from such stalks, oil or cake made from the seeds of such plant," et cetera, despite the fact that such products or substances contain trace amounts of THC. The fact that federal law specifically bans synthetic THC did not change the ruling of the court. Further, the court found no exception in the CSA for cannabis plants containing very low amounts of THC. The court in White Plume noted that other courts have found that banning hemp (cannabis with virtually no THC) served the purpose of making detection of psychoactive versions of the plant, and prosecution of crimes concerning psychoactive cannabis, easier. (Id. at p. 1072-1073; citing Hemp Council v. Marshall (1st Cir. 2000) 203 F.3d 1, 6.) It appears that the state of federal law on industrial hemp is in flux. Final resolution of the state or federal law may not occur until the United States Supreme Court considers these issues. 8. Governor's Veto of AB 1147 (Leno) 2006 In his veto message of AB 1147 last year the Governor stated: 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 that 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 ---------------------- <8> As noted in "existing law," above, marijuana is defined in federal law as "all parts of the plant Cannabis sative L., whether growing or not; the seeds thereof, the resin extracted . . . from the plant; and every compound . . . derivative," et cetera, of such plant. (More) AB 684 (Leno) PageG agri-business in California, while preserving natural resources and protecting consumers. Given these facts, I would like to support the expansion of a new agricultural 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 there is no definition of industrial hemp nor is there a distinction between cannabis plants based on Tetrahydrocannabinols (THC) content as delineated in AB 1147. In fact, under federal law, all cannabis plants, regardless of variety or THC content, are simply considered to be marijuana, which is a federally regulated Schedule I controlled substance. Any person in the United States that 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 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 ruled 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 (More) AB 684 (Leno) PageH 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. (More) 9. Argument in Opposition The California Narcotic Officers' Association argues in opposition: The California Narcotic Officers' Association strongly opposes AB 684. First, cultivation of hemp is illegal in the United States. The prohibition is found in federal law, which would be unaffected by passage of AB 684. Even Eric Steenstra, President of Vote Hemp, has admitted that "under current national drug control policy, industrial hemp can be imported, but it cannot be grown by American farmers." (Vote Hemp news release February 13, 2007.) It was the unassailable fact that federal law prohibits the cultivation of hemp that contributed to Governor Schwarzenegger's veto of AB 1147 last legislative session. Since that time, nothing has changed with respect to federal law. Proponents argue that the recent Ninth Circuit ruling in Hemp Industries v. DEA permits the cultivation of industrial hemp. This is not correct. That case was decided on narrow procedural grounds which found that DEA had not followed its own rules in ordering destruction of hemp related products. The best evidence of this fact is that Congressman Paul has introduced a federal bill to legalize hemp cultivation. There are sound public policy reasons for prohibiting the cultivation of hemp. Hemp is indistinguishable from marijuana. Its cultivation will compromise marijuana enforcement, as is established by photographs we have submitted. The burdens this will place on law enforcement are simply incalculable. Enforcement operations will have to await lab tests prior to taking any action. Due to laboratory backups, marijuana enforcement will likely be (More) AB 684 (Leno) PageJ curtailed, although large criminal combines are firmly ensconced in marijuana production. Hemp could be a useful device by drug traffickers to evade detection: A marijuana producer might grow a portion of his/her grow area in hemp (the THC reduction caused by hemp-marijuana cross pollination, contrary to assertions of proponents, does not occur in a plant's first generation) to fool law enforcement. Proponents incorrectly argue (with a vigor that calls to mind the patent medicine salesmen of the old west) that hemp cultivation will be a virtual economic and ecological panacea. According to Dr. Valerie Vantreese-Askren, Professor of Agricultural Economics, hemp will remain a niche product. American farmers will not be able to compete against heavily subsidized Chinese and European hemp producers. Dr. Hayo M. G. van der Werf, with the French Institute of Agronomic Research, and former editor of the Official Journal of the International Hemp Association, has stated that many of the claims for hemp's benefits are "inaccurate" and "may be due to the emotional commitment many individuals have in making this a viable crop." Finally, European production of hemp has reduced significantly over the last decade. ***************