BILL ANALYSIS
AB 684
Page 1
GOVERNOR'S VETO
AB 684 (Leno)
As Amended August 27, 2007
2/3 vote
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|ASSEMBLY: |41-29|(May 10, 2007) |SENATE: |26-13|(September 11, |
| | | | | |2007) |
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|ASSEMBLY: |46-29|(September 12, | | | |
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Original Committee Reference: PUB. S.
SUMMARY : Clarifies the definition of "marijuana" contained in
the Uniformed Controlled Substance Act (CSA) to exclude
industrial hemp, except where the plant is cultivated or
processed for purposes not expressly allowed, as specified.
The Senate amendments :
1)Include in the definition of "industrial hemp" products
imported under various provisions of the First Revision of the
2007 Harmonized Tariff Schedule of the United States (HTSUS).
Specified products include "hemp seed," "hemp oil," "true
hemp," "true hemp yarn and woven fabrics of true hemp fibers."
2)Require the laboratory test report, as specified, include the
Global Positioning System (GPS) coordinates and the total
acreage of the industrial hemp crop.
3)State that the provisions of this bill authorizing the growing
of industrial hemp shall only apply in Imperial, Kings,
Mendocino, and Yolo Counties, except in the following cases:
where industrial hemp raw materials are already legal under
federal law, the transportation of seed capable of germination
in California, and the transportation of samples for testing
at a laboratory registered with the federal Drug Enforcement
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Administration (DEA), as specified.
4)Require, except when grown by an established agricultural
research institution, industrial hemp shall be grown only as a
densely planted fiber or oilseed crop in acreage of not less
than five acres and no portion of an acreage of industrial
hemp shall include plots of less than one contiguous acre.
Ornamental and clandestine cultivation, as well as the
pruning, culling, and tending of individual plants is
prohibited.
5)Define "established agricultural research institution" as a
public or private institution or organization that maintains
land for agricultural research, including colleges,
universities, agricultural centers, and conservation research
centers.
6)Provide that samples to perform specified testing shall be
collected and transported only by an employee or agent of a
laboratory that is registered with the federal DEA.
7)State that a person who purchases industrial hemp seed for
planting shall retain the original laboratory test report
required by provisions of this bill for two years following
the harvest and shall make the test report available for
inspection by law enforcement upon request.
8)Mandate that all industrial hemp seed from a crop or source
not tested, as specified, shall be planted and cultivated only
by an established agricultural research institution if it was
produced by feral plants or it is the initial California seed
stock of a type of planting seed imported in accordance with
the laws of the United States (U.S).
9)Require that if the laboratory test report indicates a
percentage content of THC that is equal to or less than
three-tenths of 1%, the laboratory must 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.
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10)Prohibit a person who intends to grow industrial hemp and
complies with the provisions of this bill from being
prosecuted for the cultivation or possession of marijuana as a
result of a laboratory test report that indicated a percentage
content of tetrahydrocannabinol (THC) that is greater than
three-tenths of 1% but does not exceed 1%. This shall not
apply to industrial hemp grown by an established agricultural
research institution.
11)State that established 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% if that
cultivation or possession contributes to the development of
types of industrial hemp that will comply with the
three-tenths of 1% limit established by this bill.
12)Specify that any person who grows industrial hemp, as
specified, must retain an original signed copy of the
laboratory rest report and make an original signed copy
available to law enforcement.
13)State that only those employees or agents of the federal DEA
for the purposes of performing THC testing may cultivate,
produce or possess 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.
14)Mandate that not later than January 1, 2012, the Attorney
General shall report to the Assembly and Senate Committees on
Agriculture and the Assembly and Senate Committee on Public
Safety the reported incidents, if any, of the following:
a) A field of industrial hemp being used to disguise
marijuana cultivation; and,
b) Claims in a court hearing by a person other than those
exempted, as specified, that marijuana is industrial hemp.
15)Require that not later than January 1, 2012, the Hemp
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Industries Association shall report to the Assembly and Senate
Health Committees on Agriculture and the Assembly and Senate
Committees on Public Safety the following:
a) The economic impacts of industrial hemp cultivation,
processing and product manufacturing in California; and,
b) The economic impacts of industrial hemp cultivation,
proceeding and product manufacturing in other states that
may have permitted industrial hemp cultivation.
16)Declare the 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 institution and for the agricultural
production of industrial hemp in five counties.
17)Include that in the stated intent of the Legislature that law
enforcement not be burdened with THC testing of industrial
hemp crops when cultivation is in compliance with existing
law, therefore, the cultivation of industrial hemp will be
tightly controlled by requiring the following:
a) 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. The
tending of individual plants as well as ornamental and
clandestine cultivation is expressly prohibited;
b) 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;
c) 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
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officials upon request, and are required to provide one of
the original 10 copies to each person purchasing,
transporting, or otherwise obtaining the fiber, oil, cake,
or seed of the plant from the farmer;
d) 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; and,
e) 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.
18)State that only possession, outside a field of lawful
cultivation, of resin, flowering tops, or leaves that have
been removed from the hemp plant is prohibited.
19)State that 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.
20)Provide that 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.
21)Include in the list of specified prohibited conduct any
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ornamental or clandestine cultivation of the industrial hemp
plant; any pruning, culling, or tending of individual
industrial hemp plant, except when the action is necessary to
perform THC testing, as specified; and, any cultivation of
industrial hemp in acreage of less than five acres, or any
acreage comprised of plots of less than one contiguous acre,
except when the industrial hemp is grown by an established
agricultural research institution.
22)Create a sunset date of January 1, 2013.
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 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), fiber, oil, or
cake, or the sterilized seed of the plant which is incapable
of germination.
2)Required industrial hemp shall be cultivated only from seeds
imported in accordance with the laws of the U.S. or from seeds
grown in California from feral plants, cultivated plants, or
plants grown in a research setting.
3)Stated all industrial hemp seed sold for planting in
California shall be from a crop having no more than
three-tenths of 1% of THC contained in a random sampling of
the dried flowering tops and tested, as specified.
4)Mandated any person who grows industrial hemp shall, prior to
the harvest of each crop, obtain a laboratory test report
indicating the THC levels of a random sampling of the dried
flowering tops of the industrial hemp grown.
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5)Stated sampling shall occur as practicable when the THC
content of the leaves surrounding the seeds is at its peak and
shall commence as the seeds being to mature, when the first
seeds of approximately 50% of the plants are resistant to
compression.
6)Provided 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.
7)Required the laboratory test report be issued by a laboratory
registered with the federal DEA state the percentage content
of THC, and indicate the date and location of samples taken.
8)Provided 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.
9)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.
10)Stated 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 DEA to perform the laboratory testing provided by this
bill.
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11)Stated the requirement to destroy industrial hemp because the
laboratory report indicates an unlawful amount of THC 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% of the THC limit.
12)Made the following findings and declarations:
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 U.S. Court of Appeals for the Ninth Circuit has
ruled in Hemp Industries Association v. Drug Enforcement
Administration , (9th Cir. 2004) 357 F.3d 1012, that the
federal Controlled Substances Act (CSA) of 1970 [21 U.S.C.
Sec. 812(b)] 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 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 U.S.
have grown steadily since 1990 to more than $270 million in
2005, increasing at a rate of approximately $26 million 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
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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; and,
f) In 1999, the Assembly passed House Resolution 32, which
resolved that "the domestic production of industrial hemp
can help protect California 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."
FISCAL EFFECT : DOJ estimates any enforcement costs related to
this bill would be minor and absorbable and that its ongoing
efforts to combat marijuana propagation (Campaign Against
Marijuana Planting) would remain unaltered by this bill. DOJ
further contends that this bill, as currently drafted, does not
create a "hemp defense" for marijuana growers and that local law
enforcement would be able to prosecute marijuana cultivation
cases in the four hemp-producing counties without relying on DOJ
for THC testing. To the extent that local law enforcement
agencies make such referrals in the future, DOJ indicated a
reevaluation of such costs might be necessary.
In terms of litigation expenses, DOJ did not reflect any such
costs associated with this bill. DOJ indicated that the event
this bill is challenged in court, it might incur costs for
additional deputy attorneys general, but reporting costs ahead
of such litigation was premature.
DOJ estimates costs to produce a required report of outlining
cases of industrial hemp farms used to disguise marijuana
plantings will be minor and absorbable.
COMMENTS : According to the author, "This bill 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 Legally Sold in All 50 States :
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Current state and federal law exempt industrial hemp stalk,
fiber, oil, and non-viable seed from the definition of
marijuana, and these products are legally imported into the
United States for commercial use. Hemp products are legally
sold in all 50 states. Industrial hemp is grown and processed
throughout the world for food, body care products, automotive
parts, building materials, paper, clothing, canvas, rope, and
many other commercial uses. Unique to industrial hemp are the
strength of its fibers and the unusually healthy balance of
amino acids in the seed oil. The fiber is among the strongest
natural fibers in the world and it can be used to replace wood
pulp as well as synthetic fibers in numerous applications. The
oil used in foods replaces artery-clogging trans fats with
healthy fats necessary for balanced nutrition.
" A Fast Growing Industry, But Farmers Left Out : According to a
study commissioned by the Hemp Industries Association, the
market for industrial hemp products in the United States was
$270 million in 2005 and has been growing at a rate of $26
million a year. A large portion of those sales are by California
manufacturers of food and personal care products made from hemp
seed and oil. These manufacturers must import industrial hemp
as a raw material that could be grown by California farmers.
Consumers, retailers, manufacturers, and importers are all
benefiting from rapidly expanding hemp product sales. The only
ones not benefiting are California farmers who are in close
proximity to product manufacturing, but are prohibited from
growing an otherwise legal agricultural product that is now
imported in to California from Canada and other countries.
" Significant Agricultural Benefits : However, the agricultural
benefits are not limited the versatility of uses. Industrial
hemp is an excellent rotational crop because it naturally
reduces nematode populations while its dense growth smothers out
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. These benefits save farmers money.
" 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
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very different. The 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
of several feet 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 carefully 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
have worked closely with the Farm Bureau to ensure that our
regulatory measures make sense for farmers, while also ensuring
that industrial hemp production will not impact law enforcement
efforts related to illegal growing of marijuana. The bill only
permits 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, growers must obtain a laboratory test report from a
federal DEA-registered laboratory documenting the THC content of
their crop. Farmers must retain a copy of the this test report
for two years from its date of sampling; make it available to
law enforcement officials upon request; and are required to
provide a copy to each person purchasing, transporting, or
otherwise obtaining the fiber, oil, cake, or seed of the plant.
If you don't pass the test, you can't sell your product.
" Spurious Claims That Marijuana Is Hemp Prevented : The valuable
part of the marijuana plant is the flowering tops. Under the
terms of this bill, all flowering tops of the industrial hemp
plant that are removed from the field of cultivation still are
defined as 'marijuana'. Although hemp flowers have no
psychoactive effects and no legal commercial application, this
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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."
Please see the policy committee analysis for full discussion of
this bill.
GOVERNOR'S VETO MESSAGE :
As I indicated last year, 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 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 federal law, all cannabis plants, regardless of
variety or THC content, are simply considered to be
"marijuana", which is a federally regulated controlled
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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.
In additional, 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.
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744
FN: 0003664