BILL ANALYSIS Ó
SB 676
Page 1
Date of Hearing: June 29, 2011
ASSEMBLY COMMITTEE ON AGRICULTURE
Cathleen Galgiani, Chair
SB 676 (Leno) - As Amended: June 15, 2011
SENATE VOTE : 22-14
SUBJECT : Industrial hemp: pilot grow project.
SUMMARY : Authorizes an eight-year, five-county pilot project with
respect to the cultivation and processing of industrial hemp.
Specifically, this bill :
1)Makes various legislative declarations and findings on industrial
hemp.
2)Permits a pilot program for industrial hemp research by
established agricultural research institutions as specified, and
for the agricultural production of hemp in five counties.
3)Defines "industrial hemp" as an agricultural field crop limited to
the non-psychoactive varieties of the plant Cannabis sativa L.,
having no more than three-tenths of 1% tetrahydrocannabinol (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.
4)Provides that the statutory definition of marijuana does not
include industrial hemp.
5)Clarifies that industrial hemp shall include the defined hemp
products in the 2007 Harmonized Tariff Schedule of the United
States.
6)Prohibits 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.
7)Prohibits transportation or sale of any Cannabis sativa L. seed
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capable of germination across state borders except as permitted by
federal law.
8)Requires industrial hemp farmers to post signs identifying the
crop, as specified.
9)Regulates the plot size of industrial hemp farms, and specifically
prohibits tending of individual plants.
10)Requires industrial hemp growers, except those that are
established agricultural research institutions, to obtain a
laboratory test report indicating TCH levels prior to harvesting,
as specified.
11)Specifies the requirements of the testing regimen to be used to
ensure hemp in this pilot program has no psychoactive properties.
12)Requires the destruction of hemp within 48 hours if the first
laboratory test results indicate a THC content over 1%, and the
destruction of the hemp within 45 days if a second laboratory test
report indicates a THC content over 0.3%.
13)Requires industrial hemp growers to retain an original, signed
copy of the laboratory test report for two years to be made
available to law enforcement officials or their designees, and to
persons purchasing, transporting, or otherwise obtaining the
industrial hemp.
14)Specifies the agricultural production pilot program shall take
effect only in Imperial, Kings, Kern, San Joaquin, and Yolo
Counties.
15)Requires the Department of Justice (DOJ) to report to specified
legislative committees, on or before January 1, 2018, and report
incidents of a field of industrial hemp being used to disguise
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.
16)Requires the Hemp Industries Association to submit economic
impact reports to the Legislature by January 1, 2018.
17)Includes a January 1, 2020 sunset provision.
EXISTING STATE LAW :
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1)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. ÝHealth & Safety
Code HSC) Section 11018.]
2)States that except as otherwise provided by law, every person who
plants, cultivates, harvests, dries, or processes, any marijuana,
or any part thereof, except as otherwise provided by law, shall be
punishable by imprisonment in the state prison. (HSC Section
11358.)
3)States that except as otherwise provided by law, every person that
possesses marijuana for the purposes of sale shall be punished by
imprisonment in the state prison. (HSC Section 11359.)
4)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 or by a fine of not more than $500, or by both such fine and
imprisonment, or shall be punished by imprisonment in the state
prison. ÝHSC Section 11357(a).]
5)States that except as authorized by law, every person who
possesses not more than 28.5 grams of marijuana, other than
concentrated cannabis, is guilty of an infraction punishable by a
fine of not more than $100. ÝHSC Section 11357(b).]
6)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 or by a fine
of not more than $500, or by both such fine and imprisonment.
ÝHSC Section 11357(c).]
7)States that except as authorized by law, every person 18 years of
age or over who possesses not more than 28.5 grams of marijuana,
other than concentrated cannabis, upon the grounds of, or within,
any school providing instruction in kindergarten or any of grades
1 through 12 during hours the school is open for classes or
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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. ÝHSC
Section 11357(d).]
8)States that except as authorized by law, ever person under the age
of 18 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 $250 for a first offense, or a
fine of not more that $500 or commitment to a juvenile facility,
as specified, upon a finding that a second or subsequent offense
has been committed. ÝHSC Section 11357(e).]
EXISTING FEDERAL LAW :
1)Places controlled substances in five schedules, ranked by medical
benefit and potential for abuse. Schedule I controlled substances
are deemed to have no medical benefits and high potential for
abuse. (21 U.S.C. Section 812.)
2)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 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."
Ý21 U.S.C. Section 802(16).]
3)Lists marijuana as a schedule I controlled substance. (21.U.S.C.
Section 812.)
4)Lists THC as a separate schedule I substance. (21 U.S.C. Section
812.)
5)Provides, in the supremacy clause, that if federal law has
preempted state law, either expressly or implied, then state law
is required to yield. (US Constitution, Article 6, Clause 2.)
6)Provides in the Commerce Clause that Congress has the exclusive
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authority to manage commerce between the states, with foreign
nations, and Indian tribes. (US Constitution Article 1, Section
8, Clause 3.)
FISCAL EFFECT : According to the Senate Appropriations Committee,
there are unknown local costs for enforcement; minor, absorbable
general fund cost for DOJ reporting; estimated $25,000 in special
fund revenues; and, unknown, potentially $20,000 to $40,000 in
special fund costs per investigation.
COMMENTS : According to the author," SB 676 is about job creation
and allowing farmers to choose crops that suit their business needs
and prospects. Preventing American farmers from cultivating
industrial hemp has created a growing market for other countries to
supply the state's food and personal care product manufacturers.
The U.S. imports millions of pounds of hemp fiber, seed and oil.
The current U.S. market for industrial hemp products is $400 million
and growing at a rate of $26 million per year. Of the U.S.-based
hemp product companies, more than 55% are based in California, many
of which would expand their business if a local and more economical
source of industrial hemp was available. These are our companies
and our farmers should able to supply them.
"In addition to the economic opportunities, hemp is an
environmentally-friendly and sustainable crop that reduces the use
of chemicals and saves farmers money. Hemp requires little or no
pesticides and herbicides, puts nutrients back into the soil and
leaves the field virtually free of weeds making it an excellent
rotational crop. As a source for paper, hemp produces more fiber
per acre than timber, and hemp matures in 90 days as opposed to the
decades required for timber. Hemp can also be used for plywood-type
building materials. Over time, hemp cultivation could allow us to
meet an ever growing demand for paper products as well as the demand
for building materials traditionally met by timber.
"Industrial hemp, by definition, has no psychoactive properties and
is distinct from marijuana; however, the bill has been carefully
crafted to address concerns of law enforcement. The bill
establishes a limited pilot program and hemp cultivation is
permitted only as an agricultural field crop or in an established
research setting. Upon request of law enforcement, farmers must
show the lab report verifying that THC level of the crop meets the
three-tenths of one percent THC standards. All crops that fail THC
requirement or failure to meet other requirements outlined will be
considered marijuana under the law. Although they contain no
psychoactive properties and have no legal commercial application,
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all industrial hemp flowering tops and leaves that are removed from
the field of cultivation are still defined as marijuana in the bill.
This ensures that in the event of a drug bust, law enforcement does
not need to question if cannabis leaves are hemp or marijuana."
In 2002, researchers at Purdue University published an exhaustive
study of the potential value for hemp cultivation in the United
States. (See
http://www.hort.purdue.edu/newcrop/ncnu02/v5-284.html .) The study
noted: Hemp "is extremely unusual in the diversity of products for
which it is or can be cultivated."
The list of diverse products that can come from hemp include:
1) Hemp seeds produce nutritious oil, high in fatty acids found
in fish oils which can serve as raw materials for cell
structure and as precursors for biosynthesis. This oil
contains antioxidants known as "tocopherols" and have been used
in paints, inks and other similar industrial and personal
applications.
2) Hemp fibers are strong and durable. China leads in the
development of hemp fibers for textiles.
3) Hemp is useful for applications such as currency where
strength is needed, but is not currently competitive with wood
pulp for newsprint and general paper uses.
4) Hemp plastic composites are light and strong and may be
particularly valuable. Henry Ford had used these composites
and Mercedes currently is using hemp composites.
5) Hemp is increasingly used for insulation in Europe. Hemp
fiberboard is strong and hemp could be used in high-quality
concrete and building products.
6) Hemp is a superior material for animal bedding, with its
absorbent stalk cores it can be used for oil spills and other
pollution and environmental control uses, such as, to control
soil erosion and are good alternatives to plastics for weed
control and planting material.
7) Hemp is popularly used in shampoo, soaps and lotions and
researchers in Europe have touted hemp biofuels.
8) Hemp is well suited for organic agriculture, and is much
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less "ecotoxic" than most other crops. Pesticides and
fungicides are usually unnecessary.
Federal Preemption : The United States Constitution states that of
the powers granted to Congress is "Ýthe power] Ýt]o regulate
commerce with foreign nations, and among the several states, and
with the Indian Tribes." (United State Constitution Article I,
Section 8.) Also, Congress has the power to preempt state law under
the Constitution's supremacy clause. (U.S. Constitution, article VI,
clause 2.) However, there is a strong presumption against
preemption of the historic police powers of the states, which
include state criminal sanctions for drug possession. ÝCounty of
San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 822-823.]
The California Supreme Court has identified four categories of
federal preemption: express, conflict, obstacle, and field.
Express preemption occurs when Congress explicitly states the extent
to which its enactments pre-empt state law. Conflict preemption
arises when it is impossible to simultaneously comply with both
state and federal directives. Obstacle preemption applies when
under the circumstances of a particular case, the challenged state
law stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress. Finally, field preemption
arises where the scheme of federal regulation is sufficiently
comprehensive to make reasonable the inference that Congress left no
room for supplementary state regulation in a particular area of law.
ÝViva! Internat. Voice for Animals v. Adidas Promotional Retail
Operations, Inc. (2007) 41 Cal.4th 929, 935-936, fn. omitted.]
Several cases have recognized that express and field preemption do
not apply to state drug laws because of language expressly contained
in the federal Controlled Substances Act. (See e.g., Qualified
Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 758;
County of San Diego v. San Diego NORML, supra, 165 Cal.App.4th at p.
819.) Specifically, 21 U.S.C. Section 903 says, "No provision of
this subchapter shall be construed as indicating an intent on the
part of the Congress to occupy the field in which that provision
operates, including criminal penalties, to the exclusion of any
State law on the same subject matter." The issue, then, is whether
the State of California can redefine "marijuana" differently than
federal statute and not violate principles of conflict or obstacle
preemption.
The federal Controlled Substance Act 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 such plant; and every
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compound, manufacture, salt, derivative, mixture, or preparation of
such plant, its seeds or resin . . . . " Ý21 U.S.C Section
802(16).] While industrial hemp is a specially-bred,
non-psychoactive variety of the species Cannabis sativa L., the
plant still belongs to that species.
On the other hand, federal law excludes from the definition of
marijuana the "stalks of Ýthe] 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 there from), fiber,
oil, or cake, or the sterilized seed of such plant which is
incapable of germination." Ý21 U.S.C Section 802(16).] An argument
can be made that industrial hemp falls within this latter exclusion.
Also, in contrast to the definition of industrial hemp in this
bill, nothing in the federal law defines marijuana in relation to
the level of THC in the plant.
In December, 2010, a Congressional Research Study on Hemp as an
Agricultural Commodity was released (see
< http://www.fas.org/sgp/crs/misc/RL32725.pdf >) and provided an
overview of Cannabis varieties and a comparison of hemp and
marijuana:
"There are many different varieties of cannabis plants. Marijuana
and hemp come from the same species of plant, Cannabis sativa, but
from different varieties or cultivars. However, hemp is genetically
different and is distinguished by its use and chemical makeup.
"Hemp . . . is characterized by plants that are low in THC (delta-9
tetrahydrocannabinol, marijuana's primary psychoactive chemical).
THC levels for hemp are generally less than 1%.
"Marijuana refers to the flowering tops and leaves of psychoactive
cannabis varieties, which are grown for their high content of THC.
Marijuana's high THC content is primarily in the flowering tops and
to a lesser extent in the leaves. THC levels for marijuana are much
higher than for hemp, and are reported to average about 10%; some
sample tests indicate THC levels reaching 20%- 30%, or greater.
"A level of about 1% THC is considered the threshold for cannabis to
have a psychotropic effect or an intoxicating potential." (2010
CRS, Hemp as an Agricultural Commodity, p. 1.)
Since this Congressional Research Report came out, Representative
Ron Paul has introduced "The Industrial Hemp Farming Act of 2011"
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to amend the Controlled Substances Act to exclude hemp from the
definition of marijuana. The Act specifies that the term
"marijuana" does not include industrial hemp, which the Act
defines based on its content of delta-9 tetrahydrocannabinol
(THC), marijuana's primary psychoactive chemical. Such a change
could remove low-THC hemp from being included by the CSA as a
controlled substance and subject to Drug Enforcement Agency
regulation, thus allowing for industrial hemp to be grown and
processed under some state laws.
Additionally, several states have passed or sought to pass to pass
hemp legislation. The substance of the proposed legislation has
varied, but at least eight states (Hawaii, Kentucky, Maine,
Maryland, Montana, North Dakota, Oregon, Vermont, and West
Virginia) have sought to remove barriers to the cultivation of
hemp. (See 2010 CRS, Hemp as an Agricultural Commodity, p. 17.)
According to one of the supporters, the Drug Policy Alliance ,
"Industrial hemp is a crop that is grown and processed throughout
the world for paper, clothing, canvas, rope, food and body care
products, automotive parts, and many other commercial uses. Unique
to industrial hemp are the strengths of its fibers and the unusually
healthy balance of amino acids in the seed oil. The fiber is among
the strongest natural fiber in the world and can be used to replace
wood pulp, as well as synthetic fibers in numerous applications. The
oil replaces artery-clogging trans fats with healthy fats necessary
for balanced nutrition.
"Demand for hemp products has been growing rapidly in recent years
and California farmers would benefit from this growth. The benefits
for farmers are not only financial, but also practical. 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.
"The environmental benefits of hemp as a replacement for wood pulp
and as a fiber woven with cotton for fabric, as well as the
agricultural benefits of reduced pesticide and herbicide use and
improved soil conditions, all point to the need to foster the
cultivation of hemp. California law should be changed to permit the
cultivation of industrial hemp as an agricultural crop."
According to one of the opposition, the Association for Los Angeles
Deputy Sheriffs , "Hemp is virtually indistinguishable from
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marijuana, and thus cultivation will seriously undermine the ability
of law enforcement to enforce marijuana laws. Further, SB 676
contravenes federal law (21 USC 802) and passage will create
confusion to growers who may not understand they would be subject to
federal prosecution even if growing hemp were permitted by state
law. Creating physical or legal ambiguity is not good criminal
justice policy, and thus, we are opposed to this measure."
In addition, the creation of a hemp industry in California would
also bring the need for capital investment and development of
processing operations, as with with other agricultural commodities.
These facilities typically have higher paying, year-round job
opportunities. The economic multiplier of value added commodities
is one of the highest for these types of products.
Industrial hemp does not grow in the same fashion as marijuana,
similar to field corn and sorghum; both are in the corn family, but
one is short with a large seed head and the other is tall with seeds
on a cob. Typically, hemp is planted in close spacing and narrow
rows, while marijuana is larger spacing and much wider separation of
the rows. Hemp is tall and grown for its stalks, while marijuana is
short and grown for its flowers.
This bill was heard in the Assembly Committee on Public Safety on
June 21, 2011, and passed on a vote of 5-2.
Related Legislation : AB 1017 (Ammiano), of the 2011-12 Legislative
Session, would have the penalty for the cultivation of marijuana be
an alternate felony/misdemeanor. AB 1017 failed passage on the
Assembly Floor.
Prior Legislation : AB 684 (Leno), of the 2007-08 Legislative
Session, was substantially similar to this bill and would have
permitted the cultivation of industrial hemp in California under a
pilot program in five counties. AB 684 was vetoed. In his veto
message, Governor Schwarzenegger stated:
"Under federal law, all cannabis plants, regardless of variety
or THC content, are simply considered to be "marijuana", which
is a federally regulated 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.
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"In addition, 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."
AB 1147 (Leno), of the 2005-06 Legislative Session, would have
permitted the cultivation of industrial hemp in California. AB 1147
was vetoed. In his veto message, Governor Schwarzenegger stated
that hemp is still considered a cannabis plant regardless of its THC
content and, therefore, illegal under federal law.
AB 388 (Strom-Martin), of the 2001-02 Legislative Session, requested
the University of California to conduct a study of the economic
opportunities associated with the production of alternative fiber
crops, including industrial hemp. AB 388 was vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
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American Hemp Inc.
Azida, Inc.
Business Alliance for Commerce in Hemp
California Certified Organic Farmers
California Conference of Machinists
California Grange
California Teamsters Public Affairs Council
Calyx Clothing
Colorganics Inc.
Dash Hemp
Dr. Bronner's Magic Soaps
Drug Policy Alliance
Green Field Paper Company
Hemp House
Hemp Shield
Hemp Technologies
Hemp Traders
Imperial County Farm Bureau
Instituto Laboral De La Raza
Jungmaven Ltd.
Living Harvest Foods
Nutiva
Santa Barbara Hemp
Sartori Movement
Skin and Coat Supplement
United Food & Commercial Workers
Union, Local 5
United Food & Commercial Workers
Union, Western States Council
United Food & Commercial Workers -
Western States Conference
Vote Hemp
One individual
Opposition
Association for Los Angeles Deputy Sheriffs
California Narcotic Officers' Association
California Peace Offices' Association
California Police Chiefs Association
Riverside Sheriffs' Association
Analysis Prepared by : Jim Collin / AGRI. / (916) 319-2084
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