BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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6
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SB 566 (Leno)
As Amended April 11, 2013
Hearing date: April 30, 2013
Health and Safety Code
Food and Agriculture Code
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INDUSTRIAL HEMP
HISTORY
Source: Hemp Industries Association; Vote Hemp
Prior Legislation: SB 676 (Leno) 2011, vetoed
AB 1147 (Leno) - 2006, vetoed
AB 684 (Leno) - 2007, vetoed
HR 32 (Strom-Martin) - 1999, adopted
AB 388 (Strom-Martin) - 2002, vetoed
Support: American Civil Liberties Union; Business Alliance for
Commerce in Hemp; California Certified Organic
Farmers; California State Grange; California State
Sheriffs' Association; California Teamsters Public
Affairs Council; Colorganics Inc.; Dash Hemp;
Datsusara; Dr. Bronner's Magic Soaps; Drug Policy
Alliance; Ecological Farming Association; Hempsteads;
Hempy's Inc.; Humboldt Traders; Instituto Laboral de
la Raza; Jungmaven Ltd.; Kings County Sheriff David S.
Robinson; Knoll Farms; Lafe's Natural BodyCare; The
Living Temple; Nutiva, Inc.; Planning and Conservation
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League; Santa Barbara Hemp Company; United Food &
Commercial Workers 8 Golden State; United Food &
Commercial Workers; Western States Council; US Hemp
Oil Inc.; Lazy Dog Designs; Hemptopia, Inc.
Opposition: California Narcotic Officers' Association;
California Police Chiefs'
Association; Los Angeles Deputy Sheriffs'
Association; Orange County
Deputy Sheriffs' Association; California
Fraternal Order of Police; California
Narcotic Officers Association; California
Police Chiefs' Association; Long Beach
Officers' Association; Los Angeles County
Professional Peace Officers'
Association; Los Angeles Police
Protective League; Riverside Sheriffs'
Association; Sacramento Deputy Sheriffs'
Association; Santa Ana Police
Officers'Association
KEY ISSUE
SHOULD CALIFORNIA FARMERS BE ALLOWED TO GROW INDUSTRIAL HEMP WHEN
AUTHORIZED UNDER FEDERAL LAW?
PURPOSE
The purposes of this bill are to 1) define "industrial hemp," as
specified; 2) define marijuana as excluding industrial hemp; 3)
allow the closely-regulated cultivation and processing of
industrial hemp, as specified; 4) impose a testing regimen to
ensure industrial hemp has no psychoactive properties; and 5)
require reports from the Attorney General on any attempts to use
the hemp law to circumvent marijuana restrictions and the Hemp
Industries Association on the economic impact of hemp
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cultivation in California.
Existing federal and California law 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 a high potential for
abuse. (21 U.S.C. § 812; Health & Saf. Code 11054-11058.)
Existing federal and California law includes marijuana in
Schedule I. (21 U.S.C. § 812; Health & Saf. Code § 11054.)
Existing California law defines "marijuana" as all parts of the
plant Cannabis sativa L., whether growing or not; the seeds
thereof; the resin extracted from any part of the plant; and
every compound, manufacture, salt, derivative, mixture, or
preparation of the plant, its seeds or resin. It does not
include the mature stalks of the plant, fiber produced from the
stalks, oil or cake made from the seeds of the plant, any other
compound, manufacture, salt, derivative, mixture, or preparation
of the mature stalks (except the resin extracted therefrom),
fiber, oil, or cake, or the sterilized seed of the plant which
is incapable of germination. (Health & Saf. Code § 11018.)
Existing federal law defines marijuana as the following:
"All parts of the plant Cannabis sativa L., whether growing
or not; the seeds thereof; the resin extracted from any part
of such plant; and every compound, manufacture, salt,
derivative, mixture, or preparation of such plant, its seeds
or resin. Such term does not include the mature stalks of
such plant, fiber produced from such stalks, oil or cake made
from the seeds of such plant, any other
compound, manufacture, salt, derivative, mixture, or
preparation of such mature stalks (except the resin extracted
therefrom), fiber, oil, or cake, or the sterilized seed of
such plant which is incapable of germination." (21 U.S.C. §§
802 (16) and 812 (10).)
Existing federal law separately lists THC as a Schedule I
substance. (21 U.S.C. 812 (17).) Federal court decisions have
held that THC in Schedule I applies only to synthetic THC,
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because "if naturally-occurring THC were covered under THC,
there would be no need to have a separate category for
marijuana, ? which contains naturally-occurring THC." (Hemp
Industries v. DEA (2004) 357 F.3d 1012, 1015, quoting a related
case.)
Existing law provides that cultivation of marijuana is a felony,
punishable by a prison term of 16 months, two years or three
years and a fine of up to $10,000. (Health & Saf. Code §
11358.)
This bill defines "industrial hemp" as follows:
An agricultural field crop limited to the non-psychoactive
varieties of the of the plant Cannabis sativa L., and the
seeds produced therefrom;
Industrial hemp shall have no more than three-tenths of 1%
(0.3%) tetrahydrocannabinol (THC) contained in the dry
flowering tops;
Industrial hemp shall be cultivated and processed exclusively
for the purpose of producing the mature stalks of the plant
and by-products of the stalk and seed, including oil or cake
made from seeds, and other preparations.
This bill redefines "marijuana" to exclude industrial hemp when
cultivated or processed for defined purposes.
This bill defines "industrial hemp" to mean a nonpsychoactive
type of the plant Cannabis sativa L. that contains no more than
0.3% THC contained in the flowering tops, and 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 for other defined purposes.
This bill states findings, declarations, and intent of the
Legislature in regards to industrial hemp.
This bill creates a new division for hemp under the Food and
Agriculture Code.
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This bill provides for cultivation requirements, minimum
acreage, signage, and various plant cultivation prohibitions to
allow visual differentiation between hemp and marijuana fields,
with exceptions for established agricultural research
institutions or seed breeders.
This bill includes industrial hemp, hemp seed, oil, yarn, and
woven fabrics as products imported under the Harmonized Tariff
Schedule of the United States of the United States International
Trade Commission.
This bill provides that a person who grows industrial hemp and
is not an established agricultural research institution or seed
breeder shall abide by specified sampling and laboratory testing
procedures.
This bill requires that laboratory test reports be issued by a
laboratory registered with the federal DEA and such reports
shall state the percentage content of THC, the date and location
of samples taken, the Global Positioning System coordinates, and
total crop acreage.
This bill requires that laboratory test reports be marked with
the appropriate test result of "PASSED AS CALIFORNIA INDUSTRIAL
HEMP" or "FAILED AS CALIFORNIA INDUSTRIAL HEMP" at or near the
top of the report. A "passed" result is a THC level at or below
0.3% content in a random sample of dried flowering tops of the
industrial hemp grown.
This bill requires the testing laboratory to provide not less
than 10 original signed copies of the report for the farmer.
The farmer shall retain at least one copy of this report for a
minimum of two years and he or she shall make copies available
to law enforcement and to each person purchasing, transporting,
or otherwise obtaining hemp plant materials.
This bill provides that industrial hemp be destroyed if
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laboratory testing indicates THC content greater than 0.3%.
This bill provides that a person who grows hemp with THC content
greater than 0.3% not be prosecuted for cultivation or
possession of marijuana.
This bill authorizes the California Department of Food and
Agriculture (CDFA) to regulate the development, growth,
harvesting, and sale of industrial hemp seeds.
This bill authorizes CDFA to promulgate additional regulations
to ensure compliance with this division or federal law.
This bill defines "established agricultural research
institution" and "seed breeder" as follows:
An "established agricultural research institution" is a
public or private institution or organization that
maintains land for agricultural research, including
colleges, universities, agricultural research centers, and
conservation research centers."
A "seed breeder" is an individual or public or private
institution or organization that develops viable industrial
hemp seed for sale or research.
This bill prohibits the possession of hemp resin, flowering
tops, or leaves, except as necessary to conduct laboratory
testing.
This bill requires the following reports by January 1, 2019, or
within five years after hemp agriculture is approved under
federal law:
The Attorney General shall report to the Legislature any
incident where marijuana is falsely claimed to be hemp, or
where hemp cultivation is used to disguise marijuana
cultivation.
The Hemp Industries Association shall also provide a
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report on the economic impacts of industrial hemp
cultivation.
This bill provides that this act not be operative unless
authorized under federal law.
This bill states findings and intent of the Legislature in
regard to industrial hemp and this act.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
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of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
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COMMENTS
1. Need for this Bill
According to the author:
SB 566 will allow California farmers to be some of the
most prepared farmers in America to grow hemp once the
federal government allows it. Industrial hemp is a
variety of the species Cannabis sativa L. that has no
psychoactive qualities because it contains less than
three-tenths of one percent THC. Even though it is a
distant cousin of marijuana, which ranges from three
to 15 percent THC content, industrial hemp is not a
drug, and it is not marijuana.
Hemp is extremely beneficial to farmers and
agricultural processors. Because it grows in dense
groves, hemp requires little or no pesticides or
herbicides. Hemp is also a great crop rotator, as it
leaves nutrients in the soil for the next crop. Hemp
cultivation will create the need for seed and fiber
processing facilities. Investors will support the
many hemp companies and processing operations that
would employ numerous Californians.
Because of the perceived similarity to marijuana,
industrial hemp has not been grown in United States
since the 1950s; however, the two are very different.
The industrial hemp plant is a stalk similar to
bamboo, has few branches, and has been bred for
maximum production of seed, and grows to a height up
to 16 feet. It is planted in densities of 100 to 300
plants per square yard. Marijuana is a tropical
variety of cannabis that usually grows to a height of
six feet and has been bred to have many branches to
maximize flowering and minimize seeding. Unlike hemp,
marijuana is planted with wide spaces between plants
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to maximize flowering.
This bill is operative only upon federal approval.
Federal approval may take several different forms
including a federal administrative waiver or a change
in law. Industrial hemp legislation has been
introduced in both houses of Congress with strong
bipartisan support. If the current federal
legislation passes, the federal government will defer
to states to regulate hemp cultivation. .
SB 566 ensures that law enforcement will not be
negatively impacted. The bill provides that all
flowering tops of the industrial hemp plant, which
have no legal commercial application, are not
permitted if removed from the field of cultivation.
Although hemp flowers have no psychoactive effect,
this relieves law enforcement of any need to
distinguish hemp from marijuana. For these reasons,
the bill enjoys the support of the California State
Sheriffs' Association. Hemp must be grown in a
minimum of five continuous acres and farmers must post
signage to indicate that only industrial hemp is
grown. Similar requirements in Canada have thwarted
theft of hemp crops. This bill ensures that hemp
crops meet the three-tenths of one percent THC
standard. Prior to harvest, growers must obtain a
report from a DEA registered laboratory documenting
the THC content of their crop, the size of the
acreage, and its G.P.S. location. Farmers must retain
copies of the report for two years, make it available
to law enforcement and provide a copy to each person
purchasing, transporting, or obtaining the oil, fiber,
or seed of the plant. If you do not pass the test, you
cannot sell your product.
Five years after federal approval, the Attorney
General will report to the Legislature on any law
enforcement impacts of industrial hemp cultivation.
The Hemp Industries Association also is required to
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report to the Legislature regarding the economic
impacts of hemp cultivation. The California
Department of Food and Agriculture will have
enforcement authority and implement regulations to
ensure that the provisions of the bill are met and
there is full compliance with federal approval.
2. Research Studies from Purdue University and the University of
Kentucky Evaluating Hemp for Various Applications and Uses
Purdue
Industrial hemp has received significant attention in recent
years. Researchers at Purdue University published an exhaustive
study of the potential value for hemp cultivation in the United
States.<1> The study noted: Hemp "is extremely unusual in the
diversity of products for which it is or can be cultivated."
Oilseeds : Hemp seeds produce nutritious oil, high in fatty
acids found in fish oils. "[T]hese essential fatty acids ?
[serve] as raw materials for cell structure and as precursors
for biosynthesis?" Hemp oil contains antioxidants known as
"tocopherols." Hemp oils have been used in paints, inks and
other similar industrial and personal applications.
Fiber : Hemp fibers are strong and durable. China leads in
the development of hemp fibers for textiles. Technological
advances will be necessary before North American producers can
successfully compete with Chinese firms.
Pulp and Paper : 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.
Plastic Composites for Automobiles and Other Manufacturing
Uses : Light and strong hemp plastic composites may be
particularly valuable. Mercedes currently uses hemp
composites. Rising oil prices may make hemp products
competitive for plastics.
Building Construction Products : Hemp is increasingly used for
insulation in Europe. Hemp fiberboard is strong and hemp
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<1> See http://www.hort.purdue.edu/newcrop/ncnu02/v5-284.html.
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could be used in high-quality concrete and building products.
Animal Bedding and Absorbent Material : Hemp is a superior
material for animal bedding. Absorbent hemp stalk cores can
be used for oil spills and other pollution control uses.
Soil Erosion Control : Hemp materials are useful to control
erosion and are good alternatives to plastics for weed control
and planting material.
Cosmetics : Hemp is popularly used in shampoo, soaps and
lotions.
Biofuels Potential : Researchers in Europe have touted hemp
biofuels.
Ecological Benefits of Hemp : [Hemp] is well suited for
organic agriculture, and is much less "ecotoxic" than most
other crops. Pesticides and fungicides are usually
unnecessary.
University of Kentucky Study
The University of Kentucky released a study in 1998 that reached
many of the same conclusions as the Purdue study. The Kentucky
study, however, specifically considered how industrial hemp
could benefit Kentucky. The study noted that hemp had
historically been an important crop in Kentucky. Kentucky
produced one-half on national hemp production in the 1800s.
Kentucky is well-suited for hemp production because of its soil
and relatively long growing season.
(Economic Impact of Industrial Hemp in Kentucky (1998) Center
for Business and Econ. Res., Univ. of Kentucky.) The Kentucky
study was funded by the Kentucky Hemp Museum and Library and the
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Deni Montana Foundation.<2>
3. 2010 Congressional Research Report on Hemp
The Congressional Research Service wrote a hemp economic
analysis in 2010. The report listed the wide uses for hemp
products and noted criticisms that the hemp market was limited.
However, the report cited the growth of the Canadian hemp
industry: "[S]tudies by Canadian agriculture agencies ? provide
a more positive market outlook, given growing consumer demand
and also certain production advantages to growers, such as
relatively low input and management requirements ?" (CSR, 2010,
Hemp as an Agricultural Commodity, p. 10.)
4. The THC Issue - Negligible THC in Hemp, High
Concentrations of CBD, a THC Chemical Antagonist
It is generally accepted that the dominant marijuana "high" is
caused by TCH. The prohibition on marijuana is based on the
presence of THC in the flowering tops and leaves. Other parts
of the plant essentially have negligible THC content.
Smoked marijuana generally has about 25 times more THC than
hemp. Equally important, hemp contains CBD, an antagonist to
THC that cancels the effects of THC. CBD is abundant in
industrial hemp, but not in the drug marijuana. A ratio 2:1 CBD
to THC suppresses any intoxicating effect of THC. Industrial
hemp typically has a CBD-THC ratio of 5:1. Smoking or otherwise
ingesting any amount of hemp could not intoxicate someone.
Industrial hemp is generally defined as cannabis plants with a
THC content of less than 0.3%. The Purdue report states that
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<2> The museum describes its mission: "The Kentucky Hemp
Growers Cooperative Museum & Library was established in October
1994, as a non-profit organization, to educate the public about
the cultural, historic and economic importance of the hemp
industry in Kentucky and the United States." According to a
July 4, 1998 article in the Lexington Herald-Leader, the study
cost $23,000. The Deni Montana Foundation appears to be
associated with actor Woody Harrelson.
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marijuana in the illicit market typically has a THC content of
5-10%. This is about 17-35 times the amount of THC found in
industrial hemp.
It appears that 0.3% THC became the standard for industrial hemp
because this level was the standard for French farmers. France,
unlike much of Western Europe, never banned hemp production.
Hemp was also unrestricted in the Soviet Union. Russia has
developed hemp with lower THC content.
Some law enforcement officials have expressed concerns that
wide-spread use of hemp products could interfere with drug tests
because it could not be determined whether the metabolites of
TCH found in blood or urine samples was produced by legitimate
hemp seed products or marijuana. The Purdue study found this
concern largely unsupported. "Federal US [drug
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testing] programs utilize a THC metabolite level of 50 parts per
billion in urine. Leson (2000) found that this level was not
exceeded by consuming hemp products, provided that THC levels
are maintained below 5 ppm [parts per million] in hemp oil, and
below 2 ppm in hulled seeds."<3>
Drug marijuana growers have become extremely sophisticated in
producing very strong strains of sinsemilla marijuana (female
marijuana plants without seeds) in small spaces. Pollination
of drug marijuana by industrial hemp fields would be extremely
harmful to drug marijuana growers. Drug marijuana growers
would thus not hide marijuana in hemp fields. Drug marijuana
growers would seek to avoid being anywhere near hemp fields.
Arguments have been made that hemp legalization could be the
proverbial camel's nose under the tent leading to marijuana
legalization. This argument appears to assume that the public
would conclude that the benefits of hemp indicate that
marijuana, because it comes from the same species of plant, is
an appropriate and beneficial drug. It does not appear that
countries that allow hemp cultivation have higher rates of
marijuana consumption than comparable countries that do not.
While many European countries have authorized hemp cultivation
in the last 15 years, marijuana use has not risen with hemp
production. Numerous studies have noted that European
consumption of marijuana (for intoxication) is much lower than
in the United States. (EU Annual Report on Drug Problems in
Europe, 2005.) Many European countries with low rates of
marijuana use allow hemp cultivation. Marijuana consumption
appears to be tied to the urbanization of a country.
5. Legislation Concerning Industrial Hemp in Other Jurisdictions
Several states and the federal government have passed or sought
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 and
Vermont and West Virginia) have sought to remove barriers to the
cultivation of hemp. Hawaii received DEA permission to grow
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<3> See fn. (2), supra.
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industrial hemp on a one-quarter acre of government land under
24-hour security. The Hawaii hemp experiment terminated at the
end of September 2003. According to the David P. West, Ph.D.,
an agronomist hired to conduct the project, the DEA effectively
frustrated attempts to fully implement the program. (Kolosov,
Evaluating The Public Interest: Regulation Of Industrial Hemp
Under The Controlled Substances Act, UCLA Law Review, Vol. 57,
No. 1, 2009, p 253.)
AB 388 (Strom-Martin), of the 2001-2002 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. The bill
was vetoed.
In 2005, 2007 and 2009, Representatives Ron Paul (R-TX)
introduced federal legislation to exclude industrial hemp from
the definition of marijuana.
6. Federal Preemption Issues Generally
The federal government can regulate state conduct through the
commerce clause of the U.S. Constitution. (Art. I, § 8.)
The Supreme Court has stated that the Congress can supersede
state drug laws because even intrastate drug activity affects
the national and international drug trade. "[A]ny commodity,
be it wheat or marijuana, has a substantial effect on the
supply and demand in the national market for that commodity."
(Gonzales v. Raich (2005) 545 U.S. 1, 19.)
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