BILL NUMBER: SB 566 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Leno
FEBRUARY 22, 2013
An act to add Division 24 (commencing with Section 81000) to, and
to repeal Section 81003 of, the Food and Agricultural Code, and to
amend Section 11018 of, and to add Section 11018.5 to, the Health and
Safety Code, relating to industrial hemp.
LEGISLATIVE COUNSEL'S DIGEST
SB 566, as introduced, Leno. Industrial hemp.
Existing law makes it a crime to engage in any of various
transactions relating to marijuana, as defined, except as otherwise
authorized by law, such as the Medical Marijuana Program. For
purposes of these provisions, marijuana is defined as not including
the mature stalks of the plant, fiber produced from the stalks, oil
or cake made from the seeds of the plant, any other compound,
manufacture, salt, derivative, mixture, or preparation of the mature
stalks, except the resin extracted therefrom, and fiber, oil, or
cake, or the sterilized seed of the plant which is incapable of
germination.
This bill would revise the definition of "marijuana" so that the
term would exclude industrial hemp, as defined, except where the
plant is cultivated or processed for purposes not expressly allowed.
The bill would define industrial hemp as a fiber or oilseed crop, or
both, that is limited to the nonpsychoactive types of the plant
Cannabis sativa L. and the seed produced therefrom, having no more
than 3/10 of 1% tetrahydrocannabinol (THC) contained in the dried
flowering tops, and that is cultivated and processed exclusively for
the purpose of producing the mature stalks of the plant, fiber
produced from the stalks, oil or cake made from the seeds of the
plant, any other compound, manufacture, salt, derivative, mixture, or
preparation of the mature stalks, except the resin or flowering tops
extracted therefrom, fiber, oil, or cake, or the sterilized seed of
the plant that is incapable of germination.
The bill would enact provisions relating to growing industrial
hemp that would impose specified procedures and requirements on a
person who grows industrial hemp, except when grown by an established
agricultural research institution, that would become operative when
authorized under federal law. The bill would require a person growing
the industrial hemp to obtain, before the harvest of each crop, a
laboratory test of a random sample of the crop to determine the
amount of THC in the crop, and would require the samples be taken in
the presence of, and be collected and transported only by, an
employee or agent of a laboratory that is registered with the federal
Drug Enforcement Administration. The bill would require the
laboratory test report to be issued by a laboratory registered by the
federal Drug Enforcement Administration, would require the person
growing industrial hemp to make the report available to law
enforcement officials and specified other persons. The bill would
require all industrial hemp seed sold for planting in California to
be from a crop having no more than 3/10 of 1% THC contained in a
random sampling of the dried flowering tops and tested under these
provisions, and would require the destruction of crops exceeding that
content, as specified.
The bill would provide that growing industrial hemp shall not be
construed to authorize the possession, outside of a field of lawful
cultivation, of resin, flowering tops, or leaves that have been
removed from the hemp plant, except to perform required testing by an
employee or agent of the testing laboratory or any cultivation of
the industrial hemp plant that is not grown by an established
agricultural research institution. This bill would require the
Attorney General and the Hemp Industries Association to submit
reports to the Legislature by January 1, 2019, or 5 years after the
provisions of the measure are authorized under federal law, whichever
is later, regarding the economic and law enforcement impacts of
industrial hemp cultivation.
The bill would state the findings and declarations of the
Legislature relating to industrial hemp.
By revising the scope of application of existing crimes relating
to marijuana, this bill would impose a state-mandated local program.
By specifying the conditions of cultivation, the violation of
which would be a misdemeanor pursuant to other provisions of existing
law, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
This bill would provide that the provisions of this act would not
become operative unless authorized under federal law, and, when the
provisions become operative, would require the Attorney General to
post the fact that this act has become operative on its Internet Web
site.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known, and may be cited, as the
California Industrial Hemp Farming Act.
SEC. 2. The Legislature finds and declares all of the following:
(a) Industrial hemp is produced in at least 30 nations, including
Canada, Great Britain, France, Germany, Romania, Australia, and
China, and is used by industry to produce thousands of products,
including paper, textiles, food, oils, automotive parts, and personal
care products.
(b) The United States Court of Appeals for the Ninth Circuit has
ruled in Hemp Industries Association v. Drug Enforcement
Administration, (9th Cir. 2004) 357 F.3d 1012, that the federal
Controlled Substances Act of 1970 (21 U.S.C. Sec. 812(b)) explicitly
excludes nonpsychoactive hemp from the definition of marijuana, and
the federal government has declined to appeal that decision.
(c) The federal 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 estimates by the Hemp Industries Association,
sales of industrial hemp products in the United States have grown
steadily since 1990 to more than $400 million annually in 2009.
(e) California manufacturers of hemp products currently import
from around the world tens of thousands of acres' worth of hemp seed,
oil, and fiber products that could be produced by California farmers
at a more competitive price, and the intermediate processing of hemp
seed, oil, and fiber could create jobs in close proximity to the
fields of cultivation.
(f) In 1999, the Assembly passed House Resolution 32, which
resolved that "the domestic production of industrial hemp can help
protect California's environment, contribute to the growth of the
state economy, and be regulated in a manner that will not interfere
with the enforcement of marijuana laws."
(g) Assessment of the economic benefits of industrial hemp
cultivation and determination of possible impacts on the enforcement
of laws prohibiting illicit marijuana cultivation are important
concerns.
(h) It is the intent of the Legislature that law enforcement not
be burdened with tetrahydrocannabinol (THC) testing of industrial
hemp crops when cultivation is in compliance with Section 11018.5 of
the Health and Safety Code; therefore, the cultivation of industrial
hemp will be tightly controlled by requiring the following:
(1) Farmers shall not cultivate industrial hemp in acreages
smaller than five acres, and no acreage of industrial hemp shall be
comprised of plots smaller than one acre. The tending of individual
plants, as well as ornamental and clandestine cultivation, are
expressly prohibited.
(2) Farmers are required, before harvest, to obtain a laboratory
test report from a federally registered laboratory documenting that
the THC content of their crop is within the legal limit and farmers
must destroy crops that fail the THC test.
(3) Farmers must retain an original copy of the THC test report
for the planting seed and the harvested crop for two years, make
original copies available to law enforcement officials upon request,
and are required to provide an original copy to each person
purchasing, transporting, or otherwise obtaining the fiber, oil,
cake, or seed of the plant from the farmer.
(4) Although they have no psychoactive effect, any resin,
flowering tops, or leaves of the industrial hemp plant that are
removed from the lawful field of cultivation shall be, by definition,
marijuana and subject to prosecution. Farmers should take care to
ensure that all flowering tops and leaves remain in the lawful field
of cultivation after the harvest of seed or fiber. There is no lawful
reason to harvest, collect, or process the flowering tops of
industrial hemp.
(5) Except for an agent or employee of a federally registered
laboratory involved in THC testing, no person may lawfully possess
the flowering tops or leaves of industrial hemp outside of the field
of cultivation and the flowering tops or leaves shall be considered
marijuana regardless of whether they are in fact industrial hemp.
Therefore, no testing of the flowering tops or leaves of any type of
cannabis found outside the lawful field of industrial hemp
cultivation need be tested by law enforcement for THC content to
determine during a drug seizure if the cannabis in question is
marijuana or industrial hemp.
(6) In addition to plant structure, height, and method of
planting, the horticultural tending of cannabis plants indicates to
law enforcement that it is marijuana and not industrial hemp. Signs
of horticultural tending include, but are not limited to, pathways or
rows within the field to provide access to each plant, the pruning
of individual plants, or the culling of male plants from the field.
SEC. 3. Division 24 (commencing with Section 81000) is added to
the Food and Agricultural Code, to read:
DIVISION 24. Industrial Hemp
81000. For purposes of this division, "industrial hemp" has the
same meaning as that term is defined in Section 11018.5 of the Health
and Safety Code.
81001. (a) Except when grown by an established agricultural
research institution, industrial hemp shall be grown only as a
densely planted fiber or oilseed crop, or both, in acreages of not
less than five acres, and no portion of an acreage of industrial hemp
shall include plots of less than one contiguous acre. Ornamental and
clandestine cultivation, as well as the pruning, culling, and
tending of individual plants, of industrial hemp is prohibited. All
plots shall have adequate signage indicating they are industrial
hemp.
(b) Industrial hemp shall include products imported under the
Harmonized Tariff Schedule of the United States (2013) of the United
States International Trade Commission, including hemp seed, per
subheading 1207.99.03, hemp oil, per subheading 1515.90.80, true
hemp, per heading 5302, true hemp yarn, per subheading 5308.20.00,
and woven fabrics of true hemp fibers, per subheading 5311.00.40.
(c) For purposes of this section, "established agricultural
research institution" means a public or private institution or
organization that maintains land for agricultural research, including
colleges, universities, agricultural research centers, and
conservation research centers.
(d) Except when industrial hemp is grown by an established
agricultural research institution, a person who grows industrial hemp
under this section shall, before the harvest of each crop and as
provided below, obtain a laboratory test report indicating the
tetrahydrocannabinol (THC) levels of a random sampling of the dried
flowering tops of the industrial hemp grown.
(1) Sampling shall occur as soon as practicable when the THC
content of the leaves surrounding the seeds is at its peak and shall
commence as the seeds begin to mature, when the first seeds of
approximately 50 percent of the plants are resistant to compression.
(2) The entire fruit-bearing part of the plant including the seeds
shall be used as a sample. The sample cut shall be made directly
underneath the inflorescence found in the top one-third of the plant.
(3) Samples to perform the testing pursuant to this section shall
be taken in the presence of, and shall be collected and transported
only by, an employee or agent of a laboratory that is registered with
the federal Drug Enforcement Administration.
(4) The laboratory test report shall be issued by a laboratory
registered with the federal Drug Enforcement Administration, shall
state the percentage content of THC, shall indicate the date and
location of samples taken, and shall state the Global Positioning
System coordinates and total acreage of the crop. If the laboratory
test report indicates a percentage content of THC that is equal to or
less than three-tenths of 1 percent, the words "PASSED AS CALIFORNIA
INDUSTRIAL HEMP" shall appear at or near the top of the laboratory
test report. If the laboratory test report indicates a percentage
content of THC that is greater than three-tenths of 1 percent, the
words "FAILED AS CALIFORNIA INDUSTRIAL HEMP" shall appear at or near
the top of the laboratory test report.
(5) If the laboratory test report indicates a percentage content
of THC that is equal to or less than three-tenths of 1 percent, the
laboratory shall provide the person who requested the testing not
less than 10 original copies signed by an employee authorized by the
laboratory and shall retain one or more original copies of the
laboratory test report for a minimum of two years from its date of
sampling.
(6) If the laboratory test report indicates a percentage content
of THC that is greater than three-tenths of 1 percent and does not
exceed 1 percent, the person who grows industrial hemp shall submit
additional samples for testing of the industrial hemp grown.
(7) A person who grows industrial hemp shall destroy the
industrial hemp grown upon receipt of a first laboratory test report
indicating a percentage content of THC that exceeds 1 percent or a
second laboratory test report pursuant to paragraph (6) indicating a
percentage content of THC that exceeds three-tenths of 1 percent. If
the percentage content of THC exceeds 1 percent, the destruction
shall take place within 48 hours after receipt of the laboratory test
report. If the percentage content of THC in the second laboratory
test report exceeds three-tenths of 1 percent, the destruction shall
take place as soon as practicable, but no later than 45 days after
receipt of the second test report.
(8) Paragraph (7) does not apply to industrial hemp grown by an
established agricultural research institution if the destruction of
the industrial hemp grown will impede the development of types of
industrial hemp that will comply with the three-tenths of 1 percent
THC limit established in this section.
(9) A person who intends to grow industrial hemp and who complies
with this section shall not be prosecuted for the cultivation or
possession of marijuana as a result of a laboratory test report that
indicates a percentage content of THC that is greater than
three-tenths of 1 percent but does not exceed 1 percent.
(10) Paragraph (9) does not apply to industrial hemp grown by an
established agricultural research institution. Established
agricultural research institutions shall be permitted to cultivate or
possess industrial hemp with a laboratory test report that indicates
a percentage content of THC that is greater than three-tenths of 1
percent if that cultivation or possession contributes to the
development of types of industrial hemp that will comply with the
three-tenths of 1 percent THC limit established in this section.
(11) The person who grows industrial hemp shall retain an original
signed copy of the laboratory test report for two years from its
date of sampling, make an original signed copy of the laboratory test
report available to law enforcement officials or their designees
upon request, and shall provide an original copy of the laboratory
test report to each person purchasing, transporting, or otherwise
obtaining from the person who grows industrial hemp the fiber, oil,
cake, or seed of the plant.
81002. This division shall not be construed to authorize any of
the following, and all of the following are prohibited:
(a) The possession, outside of a field of lawful cultivation, of
resin, flowering tops, or leaves that have been removed from the hemp
plant, except as is necessary for an employee or agent of a
laboratory registered with the federal Drug Enforcement
Administration to perform the testing pursuant to subdivision (d) of
Section 81001.
(b) Any ornamental or clandestine cultivation of the industrial
hemp plant.
(c) Any pruning, culling, or tending of individual industrial hemp
plants, except when the action is necessary to perform the THC
testing pursuant to subdivision (d) of Section 81001.
(d) Any cultivation of industrial hemp in acreages 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.
81003. (a) Not later than January 1, 2019, or five years after
the provisions of this division are authorized under federal law,
whichever is later, the Attorney General shall report to the Assembly
and Senate Committees on Agriculture and the Assembly and Senate
Committees on Public Safety the reported incidents, if any, of the
following:
(1) A field of industrial hemp being used to disguise marijuana
cultivation.
(2) Claims in a court hearing by persons other than those exempted
in subdivision (d) of Section 81001 that marijuana is industrial
hemp.
(b) A report submitted pursuant to subdivision (a) shall be
submitted in compliance with Section 9795 of the Government Code.
(c) Pursuant to Section 10231.5 of the Government Code, this
section is repealed on January 1, 2023, or four years after the date
that the report is due, whichever is later.
81004. Not later than January 1, 2019, or five years after the
provisions of this division are authorized under federal law,
whichever is later, the Hemp Industries Association shall report the
following to the Assembly and Senate Committees on Agriculture and
the Assembly and Senate Committees on Public Safety:
(a) The economic impacts of industrial hemp cultivation,
processing, and product manufacturing in California.
(b) The economic impacts of industrial hemp cultivation,
processing, and product manufacturing in other states that may have
permitted industrial hemp cultivation.
81005. This division shall not become operative unless authorized
under federal law.
SEC. 4. Section 11018 of the Health and Safety Code is amended to
read:
11018. "Marijuana" means all parts of the plant Cannabis sativa
L., whether growing or not; the seeds thereof; the resin extracted
from any part of the plant; and every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds or resin.
It does not include 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 industrial hemp, as
defined in Section 11018.5, except where the plant is
cultivated or processed for purposes not expressly allowed for by
Division 24 (commencing with Section 81000) of the Food and
Agricultural Code .
SEC. 5. Section 11018.5 is added to the Health and Safety Code, to
read:
11018.5. "Industrial hemp" means a fiber or oilseed crop, or
both, that is limited to nonpsychoactive types of the plant Cannabis
sativa L. and the seed produced therefrom, having no more than
three-tenths of 1 percent tetrahydrocannabinol (THC) contained in the
dried flowering tops, and that is cultivated and processed
exclusively for the purpose of producing the mature stalks of the
plant, fiber produced from the stalks, oil or cake made from the
seeds of the plant, or any other compound, manufacture, salt,
derivative, mixture, or preparation of the mature stalks, except the
resin or flowering tops extracted therefrom, fiber, oil, or cake, or
the sterilized seed of the plant that is incapable of germination.
SEC. 6. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
SEC. 7. (a) This act shall not become operative unless authorized
under federal law.
(b) When this act becomes operative, the Attorney General shall
post the fact that this act has become operative on its Internet Web
site.