Amended in Senate April 1, 2013

Senate BillNo. 566


Introduced by Senator Leno

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(Principal coauthor: Assembly Member Mansoor)

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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 amended, 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 310 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 institutionbegin insert or seed breeder, as definedend insert, 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 cropbegin delete, 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 Administrationend delete. The bill would require the laboratory test report to be issued by a laboratory registered by the federal Drug Enforcementbegin delete Administration,end deletebegin insert Administration andend insert 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 310 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.begin insert The bill would require the Department of Food and Agriculture to regulate the development, growth, and sale of industrial hemp seed harvesting and activities regarding the sale of viable industrial hemp seeds, and would authorize the department to promulgate additional regulations to ensure compliance with these provisions or with federal law.end insert

The bill would provide that growing industrial hemp shall not be construed to authorizebegin insert, among other things,end insert the possession, outside of a field of lawful cultivation, of resin, flowering tops, or leaves that have been removed from the hemp plant, exceptbegin delete 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 institutionend deletebegin insert asend insertbegin insert necessary to perform the required laboratory testingend insert. 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.

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SEC. 2.  

The Legislature finds and declares all of the following:

4(a) Industrial hemp isbegin insert an agricultural cropend insert produced in at least
530 nations, including Canada, Great Britain, France, Germany,
6Romania, Australia, and China, and is used by industry to produce
7thousands of products, including paper, textiles, food, oils,
8automotive parts, and personal care products.

9(b) The United States Court of Appeals for the Ninth Circuit
10has ruled in Hemp Industries Association v. Drug Enforcement
11Administration, (9th Cir. 2004) 357 F.3d 1012, that the federal
12Controlled Substances Act of 1970 (21 U.S.C. Sec. 812(b))
13explicitly excludes nonpsychoactive hemp from the definition of
14marijuana, and the federal government has declined to appeal that
15decision.

16(c) The federal Controlled Substances Act of 1970 specifies the
17findings to which the government must attest in order to classify
P4    1a substance as a schedule I drug and those findings include that
2the substance has a high potential for abuse, has no accepted
3medical use, and has a lack of accepted safety for use, none of
4which apply to industrial hemp.

5(d) According to estimates by the Hemp Industries Association,
6sales of industrial hemp products in the United States have grown
7steadily since 1990 to more thanbegin delete $400end deletebegin insert $500end insert million annually in
8begin delete 2009end deletebegin insert 2012end insert.

9(e) California manufacturers of hemp products currently import
10from around the world tens of thousands of acres’ worth of hemp
11seed, oil, and fiber products that could be produced by California
12farmers at a more competitive price, and the intermediate
13processing of hemp seed, oil, and fiber could create jobs in close
14proximity to the fields of cultivation.

15(f) In 1999, the Assembly passed House Resolution 32, which
16resolved that “the domestic production of industrial hemp can help
17protect California’s environment, contribute to the growth of the
18state economy, and be regulated in a manner that will not interfere
19with the enforcement of marijuana laws.”

20(g) Assessment of the economic benefits of industrial hemp
21cultivation and determination of possible impacts on the
22enforcement of laws prohibiting illicit marijuana cultivation are
23important concerns.

24(h) It is the intent of the Legislature that law enforcement not
25be burdened with tetrahydrocannabinol (THC) testing of industrial
26hemp crops when cultivation is in compliance with Section 11018.5
27of the Health and Safety Code; therefore, the cultivation of
28industrial hemp will be tightly controlledbegin delete by requiringend deletebegin insert and enforced
29by the Department of Food and Agriculture consistent withend insert
the
30following:

31(1) Farmers shall not cultivate industrial hemp in acreages
32smaller than five acres, and no acreage of industrial hemp shall be
33comprised of plots smaller than one acre. The tending of individual
34plants, as well as ornamental and clandestine cultivation, are
35expressly prohibited.

36(2) Farmers are required, before harvest, to obtain a laboratory
37test report from a federally registered laboratory documenting that
38the THC content of their crop is within the legal limit and farmers
39must destroy crops that fail the THC test.

P5    1(3) Farmers must retain an original copy of the THC test report
2for the planting seed and the harvested crop for two years, make
3original copies available to law enforcement officials upon request,
4and are required to provide an original copy to each person
5purchasing, transporting, or otherwise obtaining the fiber, oil, cake,
6or seed of the plant from the farmer.

7(4) Although they have no psychoactive effect, any resin,
8flowering tops, or leaves of the industrial hemp plant that are
9removed from the lawful field of cultivation shall be, by definition,
10marijuana and subject to prosecution. Farmers should take care to
11ensure that all flowering tops and leaves remain in the lawful field
12of cultivation after the harvest of seed or fiber. There is no lawful
13reason to harvest, collect, or process the flowering tops of industrial
14hemp.

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15(5) Except for an agent or employee of a federally registered
16laboratory involved in THC testing, no person may lawfully possess
17the flowering tops or leaves of industrial hemp outside of the field
18of cultivation and the flowering tops or leaves shall be considered
19marijuana regardless of whether they are in fact industrial hemp.
20Therefore, no testing of the flowering tops or leaves of any type
21of cannabis found outside the lawful field of industrial hemp
22cultivation need be tested by law enforcement for THC content to
23determine during a drug seizure if the cannabis in question is
24marijuana or industrial hemp.

25(6)

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26begin insert(5)end insert In addition to plant structure, height, and method of planting,
27the horticultural tending of cannabis plants indicates to law
28enforcement that it is marijuana and not industrial hemp. Signs of
29horticultural tending include, but are not limited to, pathways or
30rows within the field to provide access to each plant, the pruning
31of individual plants, or the culling of male plants from the field.

32

SEC. 3.  

Division 24 (commencing with Section 81000) is added
33to the Food and Agricultural Code, to read:

34 

35Division 24.  Industrial Hemp

36

 

37

81000.  

For purposes of this division, “industrial hemp” has the
38same meaning as that term is defined in Section 11018.5 of the
39Health and Safety Code.

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81001.  

(a) Except when grown by an established agricultural
2research institutionbegin insert or seed breederend insert, industrial hemp shall be grown
3only as a densely planted fiber or oilseed crop, or both, in acreages
4of not less than five acres, and no portion of an acreage of industrial
5hemp shall include plots of less than one contiguous acre.
6Ornamental and clandestine cultivation, as well as the pruning,
7culling, and tending of individual plants, of industrial hemp is
8prohibited. All plots shall have adequate signage indicating they
9are industrial hemp.

10(b) Industrial hemp shall include products imported under the
11Harmonized Tariff Schedule of the United States (2013) of the
12United States International Trade Commission, including hemp
13 seed, per subheading 1207.99.03, hemp oil, per subheading
141515.90.80, true hemp, per heading 5302, true hemp yarn, per
15subheading 5308.20.00, and woven fabrics of true hemp fibers,
16per subheading 5311.00.40.

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17(c) For purposes of this section, “established agricultural
18research institution” means a public or private institution or
19organization that maintains land for agricultural research, including
20colleges, universities, agricultural research centers, and
21conservation research centers.

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22(d)

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23begin insert(c)end insert Except when industrial hemp is grown by an established
24agricultural research institutionbegin insert or seed breederend insert, a person who
25grows industrial hemp under this section shall, before the harvest
26of each crop and as provided below, obtain a laboratory test report
27indicating the tetrahydrocannabinol (THC) levels of a random
28sampling of the dried flowering tops of the industrial hemp grown.

29(1) Sampling shall occur as soon as practicable when the THC
30content of the leaves surrounding the seeds is at its peak and shall
31commence as the seeds begin to mature, when the first seeds of
32approximately 50 percent of the plants are resistant to compression.

33(2) The entire fruit-bearing part of the plant including the seeds
34shall be used as a sample. The sample cut shall be made directly
35underneath the inflorescence found in the top one-third of the plant.

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36(3) Samples to perform the testing pursuant to this section shall
37be taken in the presence of, and shall be collected and transported
38only by, an employee or agent of a laboratory that is registered
39with the federal Drug Enforcement Administration.

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40(4)

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P7    1begin insert(3)end insert The laboratory test report shall be issued by a laboratory
2registered with the federal Drug Enforcement Administration, shall
3state the percentage content of THC, shall indicate the date and
4location of samples taken, and shall state the Global Positioning
5System coordinates and total acreage of the crop. If the laboratory
6test report indicates a percentage content of THC that is equal to
7or less than three-tenths of 1 percent, the words “PASSED AS
8CALIFORNIA INDUSTRIAL HEMP” shall appear at or near the
9top of the laboratory test report. If the laboratory test report
10indicates a percentage content of THC that is greater than
11three-tenths of 1 percent, the words “FAILED AS CALIFORNIA
12INDUSTRIAL HEMP” shall appear at or near the top of the
13laboratory test report.

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14(5)

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15begin insert(4)end insert If the laboratory test report indicates a percentage content
16of THC that is equal to or less than three-tenths of 1 percent, the
17laboratory shall provide the person who requested the testing not
18less than 10 original copies signed by an employee authorized by
19the laboratory and shall retain one or more original copies of the
20laboratory test report for a minimum of two years from its date of
21sampling.

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22(6)

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23begin insert(5)end insert If the laboratory test report indicates a percentage content
24of THC that is greater than three-tenths of 1 percent and does not
25exceed 1 percent, the person who grows industrial hemp shall
26submit additional samples for testing of the industrial hemp grown.

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27(7)

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28begin insert(6)end insert A person who grows industrial hemp shall destroy the
29industrial hemp grown upon receipt of a first laboratory test report
30indicating a percentage content of THC that exceeds 1 percent or
31a second laboratory test report pursuant to paragraphbegin delete (6)end deletebegin insert (5)end insert
32 indicating a percentage content of THC that exceeds three-tenths
33of 1 percent. If the percentage content of THC exceeds 1 percent,
34the destruction shall take place within 48 hours after receipt of the
35laboratory test report. If the percentage content of THC in the
36second laboratory test report exceeds three-tenths of 1 percent, the
37destruction shall take place as soon as practicable, but no later than
3845 days after receipt of the second test report.

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39(8)

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P8    1begin insert(7)end insert Paragraphbegin delete (7)end deletebegin insert (6)end insert does not apply to industrial hemp grown
2by an established agricultural research institutionbegin insert or seed breederend insert
3 if the destruction of the industrial hemp grown will impede the
4development of types of industrial hemp that will comply with the
5three-tenths of 1 percent THC limit established in this section.

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6(9)

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7begin insert(8)end insert A person who intends to grow industrial hemp and who
8complies with this section shall not be prosecuted for the cultivation
9or possession of marijuana as a result of a laboratory test report
10that indicates a percentage content of THC that is greater than
11three-tenths of 1 percent but does not exceed 1 percent.

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12(10)

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13begin insert(9)end insert Paragraphbegin delete (9)end deletebegin insert (8)end insert does not apply to industrial hemp grown
14by an established agricultural research institutionbegin insert or seed breederend insert.
15Established agricultural research institutions shall be permitted to
16cultivate or possess industrial hemp with a laboratory test report
17that indicates a percentage content of THC that is greater than
18three-tenths of 1 percent if that cultivation or possession contributes
19to the development of types of industrial hemp that will comply
20with the three-tenths of 1 percent THC limit established in this
21section.

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22(11)

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23begin insert(10)end insert The person who grows industrial hemp shall retain an
24original signed copy of the laboratory test report for two years
25from its date of sampling, make an original signed copy of the
26laboratory test report available to law enforcement officials or their
27designees upon request, and shall provide an original copy of the
28laboratory test report to each person purchasing, transporting, or
29otherwise obtaining from the person who grows industrial hemp
30the fiber, oil, cake, or seed of the plant.

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31(d) The department shall regulate the development, growth, and
32sale of industrial hemp seed harvesting and activities regarding
33the sale of viable industrial hemp seeds.

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34(e) The department may promulgate additional regulations to
35ensure compliance with this division or federal law.

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36(f) For purposes of this section, the following terms have the
37following meanings:

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38(1) “Established agricultural research institution” means a
39public or private institution or organization that maintains land
P9    1for agricultural research, including colleges, universities,
2agricultural research centers, and conservation research centers.

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3(2) “Seed breeder” means an individual or public or private
4institution or organization that develops viable industrial hemp
5seed intended for sale or research.

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6

81002.  

This division shall not be construed to authorize any
7of the following, and all of the following are prohibited:

8(a) The possession, outside of a field of lawful cultivation, of
9resin, flowering tops, or leaves that have been removed from the
10hemp plant, except as is necessarybegin delete for an employee or agent of a
11laboratory registered with the federal Drug Enforcement
12Administration to perform the testing pursuant to subdivision (d)end delete

13begin insert to perform testing pursuant to subdivision (c)end insert of Section 81001.

14(b) Any ornamental or clandestine cultivation of the industrial
15hemp plant.

16(c) Any pruning, culling, or tending of individual industrial
17hemp plants, except when the action is necessary to perform the
18THC testing pursuant to subdivisionbegin delete (d)end deletebegin insert (c)end insert of Section 81001.

19(d) Any cultivation of industrial hemp in acreages of less than
20five acres, or any acreage comprised of plots of less than one
21contiguous acre, except when the industrial hemp is grown by an
22established agricultural research institution.

23

81003.  

(a) Not later than January 1, 2019, or five years after
24the provisions of this division are authorized under federal law,
25whichever is later, the Attorney General shall report to the
26Assembly and Senate Committees on Agriculture and the Assembly
27and Senate Committees on Public Safety the reported incidents,
28if any, of the following:

29(1) A field of industrial hemp being used to disguise marijuana
30cultivation.

31(2) Claims in a court hearing by persons other than those
32exempted in subdivisionbegin delete (d)end deletebegin insert (c)end insert of Section 81001 that marijuana
33is industrial hemp.

34(b) A report submitted pursuant to subdivision (a) shall be
35submitted in compliance with Section 9795 of the Government
36Code.

37(c) Pursuant to Section 10231.5 of the Government Code, this
38section is repealed on January 1, 2023, or four years after the date
39that the report is due, whichever is later.

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81004.  

Not later than January 1, 2019, or five years after the
2provisions of this division are authorized under federal law,
3whichever is later, the Hemp Industries Association shall report
4the following to the Assembly and Senate Committees on
5Agriculture and the Assembly and Senate Committees on Public
6Safety:

7(a) The economic impacts of industrial hemp cultivation,
8processing, and product manufacturing in California.

9(b) The economic impacts of industrial hemp cultivation,
10processing, and product manufacturing in other states that may
11have permitted industrial hemp cultivation.

12

81005.  

This division shall not become operative unless
13authorized under federal law.

14

SEC. 4.  

Section 11018 of the Health and Safety Code is
15amended to read:

16

11018.  

“Marijuana” means all parts of the plant Cannabis sativa
17L., whether growing or not; the seeds thereof; the resin extracted
18from any part of the plant; and every compound, manufacture, salt,
19derivative, mixture, or preparation of the plant, its seeds or resin.
20It does not include industrial hemp, as defined in Section 11018.5,
21except where the plant is cultivated or processed for purposes not
22expressly allowed for by Division 24 (commencing with Section
2381000) of the Food and Agricultural Code.

24

SEC. 5.  

Section 11018.5 is added to the Health and Safety
25Code
, to read:

26

11018.5.  

“Industrial hemp” means a fiber or oilseed crop, or
27both, that is limited to nonpsychoactive types of the plant Cannabis
28sativa L. and the seed produced therefrom, having no more than
29three-tenths of 1 percent tetrahydrocannabinol (THC) contained
30in the dried flowering tops, and that is cultivated and processed
31exclusively for the purpose of producing the mature stalks of the
32plant, fiber produced from the stalks, oil or cake made from the
33seeds of the plant, or any other compound, manufacture, salt,
34derivative, mixture, or preparation of the mature stalks, except the
35resin or flowering tops extracted therefrom, fiber, oil, or cake, or
36the sterilized seed of the plant that is incapable of germination.

37

SEC. 6.  

No reimbursement is required by this act pursuant to
38Section 6 of Article XIII B of the California Constitution because
39the only costs that may be incurred by a local agency or school
40district will be incurred because this act creates a new crime or
P11   1infraction, eliminates a crime or infraction, or changes the penalty
2for a crime or infraction, within the meaning of Section 17556 of
3the Government Code, or changes the definition of a crime within
4the meaning of Section 6 of Article XIII B of the California
5Constitution.

6

SEC. 7.  

(a) This act shall not become operative unless
7authorized under federal law.

8(b) When this act becomes operative, the Attorney General shall
9post the fact that this act has become operative on its Internet Web
10site.



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