BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Carole Migden, Chair A
2005-2006 Regular Session B
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AB 1147 (Leno) 7
As Amended June 1, 2006
Hearing date: June 20, 2006
Health and Safety Code VOTE ONLY
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INDUSTRIAL HEMP
HISTORY
Source: Hemp Industries Association; Vote Hemp
Prior Legislation: HR 32 (Strom-Martin) - 1999, adopted
AB 388 (Strom-Martin) -2002, vetoed
Support: Alice's Mountain Market; Alta Vista Growers; Alterna
Professional Haircare; Marysville Appeal-Democrat
(editorial); Atlas Corporation; Burcaw Chiropractic;
California Certified Organic Farmers; California State
Grange; CDM Corp; Center for Healing; Chico
Enterprise-Record (editorial); Community Alliance with
Family Farmers; Creative Research Management; Dr.
Bronner's Magic Soaps; Eagle Trust Union; Eco Goods;
EnvironGentle; Environmental Wholesale Products; Elk
Creek Ranch; Fiddler's Green Farm, Inc.; French Meadow
Bakery; Global Exchange; Green Party of California;
Guaranteed Organic Certification Agency; Heartsong
Herbal Brewing Company; Heavenly Low Carb; Hemp
Industries Association; Hemp Sisters; Hemp Traders;
Hempy's; Hirai Farms, Inc.; Human Exchange Musical
Programs; Institute for Cultural Ecology; J. Ginsberg
& Associates; Knoll Farms; Living Foods.Com; Luvland
Farms Lavender; Malu Healthcare; New Hope Natural
Media; North American Hemp Company; North American
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Industrial Hemp Council, Inc.; Nutiva; Organic Ag
Advisors; Organic Consumers Association; Orange County
Register (editorial); PAD; Peace of Mind Consulting;
Planning and Conservation League; Rainforest Action
Network; Raw 4 Real; Robinson's Health Products; Salon
Charisma; Sensuous Beauty, Inc.; Sierra Club
California; Strictly Hemp.com; Sunset Ranch;
Sweetgrass Natural Fibers; City and County of San
Francisco; The Living Temple; Threshold Enterprises;
Ultra Oil for Pets; Whole Balance
Opposition:Californians for Drug-Free Schools; Save Our Society
from Drugs; California Narcotic Officers' Association
Assembly Floor Vote: Ayes 44 - Noes 32
KEY ISSUES
SHOULD "INDUSTRIAL HEMP" BE DEFINED 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 AND BY-PRODUCTS OF THE STALK AND SEED?
SHOULD NUMEROUS LEGISLATIVE FINDINGS AND DECLARATIONS BE MADE
REGARDING INDUSTRIAL HEMP, INCLUDING: INDUSTRIAL HEMP IS GROWN IN
COUNTRIES SUCH AS CANADA, MANY EUROPEAN COUNTRIES, AUSTRALIA AND
CHINA; SALE OF HEMP PRODUCTS ARE GROWING; CALIFORNIA COMPANIES
IMPORT TONS OF HEMP FROM FOREIGN SOURCES TO PRODUCE HEMP PRODUCTS;
AND CONTROLLED SUBSTANCE SCHEDULING DEFINITIONS AND CONCEPTS DO NOT
APPLY TO INDUSTRIAL HEMP, AS SPECIFIED?
PURPOSE
The purpose of this bill is to define "industrial hemp" as a
legitimate, valuable and non-psychoactive agricultural product.
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Existing federal law places controlled substances in five
schedules. Schedule I controlled substances are deemed to
have no acceptable medical benefits and a high potential for
abuse. Schedule I substances generally are subject to the
most stringent restrictions in law. (21 U.S.C. 812.)
Existing law includes marijuana in the list of Schedule I
controlled substances. (Health & Saf. Code 11054.)
Existing 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 also defines marijuana as a Schedule I
controlled substance. The federal definition of marijuana in
Schedule I is 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 defines "tetrahydrocannabinols"
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(THC) as a Schedule I substance. (21 U.S.C. 812 (17).)
Decisions of the Ninth Circuit Court of Appeals have found that
the reference to THC in Schedule I applies only to synthetic
THC, because "if naturally-occurring THC were covered under
THC, there would be no need to have a separate category for
marijuana, which obviously contains naturally-occurring THC.
(Hemp Industries v. DEA (2004) 357 F.3d 1012, 1015, quoting an
earlier decision in a related case.)
Existing federal Drug Enforcement Administration regulations ,
in contrast to the Hemp Industries decisions, provide that any
product intended for human consumption that contains any
measurable quantity of THC is illegal because THC is included
as a Schedule I substance. (21 CFR part 1308.)<1>
Existing law 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, by a fine of not more than $500, by both such fine and
imprisonment, or shall be punished by imprisonment in the state
prison. (Health & Saf. Code 11357, subd. (a).)
Existing law states that except as authorized by law, every
person who possesses not more than 28.5 grams (an ounce) of
marijuana, other than concentrated cannabis, is guilty of a
misdemeanor and shall be punished by a fine of not more than
$100. Following a specified number of repeat convictions, a
defendant convicted of simply possession of under an ounce of
marijuana shall be diverted and referred for treatment. (Health
& Saf. Code 11357, subd. (b).)
Existing law 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, by a
fine of not more than $500, or by both such fine and
imprisonment. (Health & Saf. Code 11357, subd. (c).)
---------------------------
<1> It appears that this regulation, perhaps in light of the
Hemp I and II decisions, is not currently being enforced.
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Existing law 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 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. (Health
& Saf. Code 11357, subd. (d).)
Existing law provides that every person who possesses for sale
any marijuana, except as otherwise provided by law, shall be
punished by imprisonment in the state prison. (Health & Saf.
Code 11359.)
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 states that industrial hemp shall be cultivated only
from seeds imported in accordance with laws of the United States
or from seeds grown in California from feral plants, cultivated
plants, cultivated plants or plants grown in research.
This bill provides that industrial hemp growers shall, prior to
harvest, obtain a laboratory test report indicating the THC
levels of a random sampling of the dried flowering tops of the
crop, as follows.
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The laboratory test shall be issued by a lab registered with
the DEA.
The report shall state the percentage of THC in the sample and
the time, date and location of the samples were taken.
The person obtaining the report shall retain it for two years.
The report shall be made available to law enforcement upon
request.
A copy of the report shall be given to each person purchasing,
transporting et cetera the oil, cake or seed of the plant.
The report shall be stamped to reflect whether it meets the
standard for industrial hemp or not. (The sample can have a
THC content of no more than 0.3%.)
This bill states that nothing in this section shall be construed
to authorize 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.
This bill includes an exception from this requirement for the
mandatory testing of the plant for THC levels.
This bill prohibits, except in accordance with the laws of the
United States, the transportation or sale of a seed capable of
germination across state lines of any variety of Cannabis sativa
L. and any cultivation of the industrial hemp plant that is not
grown in a research setting or as an agricultural field crop.
This bill includes the following legislative findings and
declarations:
Industrial hemp is produced in at least 30 nations including
Canada, 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.
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The United States Court of Appeals Ninth Circuit has ruled in
Hemp Industries v. Drug Enforcement Administration that the
Controlled Substances Act of 1970 explicitly excludes
non-psychoactive hemp from the definition of marijuana, and
the federal government has declined to appeal that decision.
The Controlled Substances Act of 1970 (21 U.S.C. 812(b))
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.
According to a study commissioned by the Hemp Industries
Association, sales of industrial hemp products have grown
steadily since 1990 to more than $250 million in 2005,
increasing at a rate of approximately $26 million per year.
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
intermediate processing of hemp seed, oil, and fiber could
create jobs in close proximity to the fields of cultivation.
COMMENTS
1. Need for This Bill
According to the author:
While hemp fiber, oil and non-viable seed are used by
many sectors of the economy for a variety of
purposes, the Federal Government restricts the
growing of hemp and the sale of viable hemp seed.
In 1937, the United States Government mistakenly
categorized hemp with marijuana due to their physical
similarities and the fact that hemp contains THC
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(although hemp contains only a negligible amount of
the chemical). Hemp has so little THC that it
physically cannot be used as an intoxicant and is
100% safe for the consumer. Because hemp has no
psychoactive properties, the Federal Government has
allowed hemp products of every kind to be
manufactured and sold in the United States.
Californians can buy hemp clothing and food products
in stores throughout the state, but state law is
silent on the legality of growing hemp in California
for in-state commerce.
2. Industrial Hemp Defined and Hemp Uses
According to information provided by the author:
Hemp is a crop grown and processed throughout the
world for paper, clothing, canvas, rope, food
products and many other commercial uses. Hemp is
used by the automobile industry as reinforcement
fiber in "biocomposites" - press-molded or injection
molded parts used in door panels, boot liners etc.,
where they are replacing fiberglass composites or
more expensive plastics. Hemp is used in foods such
as bread, energy bars, waffles, granola, coffee,
beer, veggie burgers, pretzels, salad dressings, and
many food products. Hemp seed oil is an excellent
replacement for unhealthy fats in foods due to its
excellent balance of the essential fatty acids
linoleic acid (omega-6) and alpha-linolenic acid
(omega-3). Consuming the right balance of essential
fatty acids found in hemp seed oil offers significant
health benefits, including an improved HDL/LDL
cholesterol ratio and reducing the symptoms of
dermatitis, rheumatoid arthritis and other
inflammatory diseases, as well as improving and
optimizing development in infants.
Hemp is used in body care products such as lotions,
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lip balms, conditioners, shampoos, and soaps. Hemp
also may be used as biofuel in the production of
ethanol, a plant-based gasoline additive and
replacement. The Declaration of Independence was
actually written on hemp paper and hemp has a long
history of commercial use and cultivation in
California and the United States.
3. Major Research Study from Purdue University Concerning
Industrial Hemp - Evaluation of Hemp for Various Applications
and Uses
Industrial Hemp has received a significant amount of academic
and political attention in recent years. Researchers at Purdue
University - a major research university that is well-known for
engineering, scientific and agricultural programs - recently
published an exhaustive study of the potential value for hemp
cultivation in the United States. Arguably, the Purdue study
includes one of the most unbiased and credible evaluations of
the potential for hemp use as food, fiber and composite
materials component. (Note that criticism of the Purdue study
is discussed at the end of this comment.)
The Purdue study opened with this observation: Hemp "is
extremely unusual in the diversity of products for which it is
or can be cultivated ."
The Purdue study evaluated various current and proposed uses for
hemp products:
Oilseeds : "There are remarkable dietary advantages to
hempseed oil . . ." Hemp seeds produce very nutritious oil,
high in fatty acids that are found in fish oils. "[T]hese
essential fatty acids do not serve as energy sources, but as
raw materials for cell structure and as precursors for
biosynthesis for many of the body's regulatory biochemicals."
North American diets are seriously deficient in certain fatty
acids in hemp oil. Hemp oil essential fatty acids are found
in an optimal ratio of certain chemicals. Hemp oil also
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contains very useful antioxidants known as "tocopherols."
In the past, hemp oils have been used in paints, inks and
other similar industrial and personal applications. Linseed
and other drying oils are favored for such applications.
Hemp, classified with soybean oil as "semi-drying" oil, has
been thought more suitable as a food source than an industrial
oil. However, it appears that hemp varieties could be
selected and cultivated that produced more of a drying oil.
Increasing cultivation of such hemp varieties could reduce
costs so as to make hemp oils competitive with linseed and
similar oils.
Fiber : Hemp fibers are strong and durable. Hemp was widely
used for rope and sail cloth. China has a wide lead in the
development of hemp fibers for textiles. Technological
advances will likely be necessary before North American
producers could successfully compete with Chinese firms.
Pulp and Paper : "Hemp is useful for specialty applications
such as currency and cigarette papers where strength is
needed." Hemp is not currently competitive with wood pulp for
newsprint, books, writing paper and general paper uses. In
northern states, fast-growing poplars can be used to produce
pulp for paper. However, hemp production in the southern US
would likely yield at least twice the pulp per acre as a pine
plantation (a common southern forestry product). Technology
could increase the economic viability of hemp for paper
products by allowing more of the plant to be used.
Plastic Composites for Automobiles and Other Manufacturing
Uses : Hemp plastic composites may be particularly valuable for
industrial products. These composite materials are light and
strong. Henry Ford used hemp materials in the 1920's. "Rather
ironically in view of today's parallel situation, Ford's hemp
innovations in the 1920's occurred at a time of [farm crisis],
later to intensify with the depression. The need to produce
new industrial markets for farm products led to a broad
movement for scientific research in agriculture that . . .
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today is embodied in chemical applications of crop
constituents." Mercedes currently uses hemp composites in
automobiles. Plastics are typically made from petroleum
products. Rising costs of oil may make hemp products
increasingly valuable. "Natural fibers [such as hemp] have
considerable advantages for use in conveyance; low density and
weight reduction. Favorable mechanical, acoustical and
processing properties (low wear on tools), no splintering in
accidents, occupational health benefits (compared to glass
fibers), no off-gassing of toxic compounds, and price
advantages." Hemp composites can be used for a wide-range of
applications.
Building Construction Products : Hemp is increasingly being
used for thermal insulation products in Europe. Demand for
hemp insulation is driven by the rising costs of heating and
cooling, ecological concerns about fossil fuels and desires
for renewable resources. The Purdue report noted:
"Experimental production of hemp fiberboard has produced
extremely strong material. The economic viability of such
remains to be tested." Hemp could be valuable in producing
high-quality concrete: "Hemp fibers added to concrete
increase tensile strength while reducing shrinkage and
cracking. Whole houses have been made based on hemp fiber."
At least at this time, hemp cement material may be more costly
than materials made with wood chips or straw from other crops.
Hemp can be chemically combined with other materials to make
high-quality and low-cost building products. "Hemp with
gypsum and binding agents may produce light panels that may
compete with drywall. Hemp [hurds] and lime mixtures make a
high quality plaster." Hemp plaster can be poured like
concrete and hardens into a stone-like material that is much
lighter than cement and has much better heat and sound
insulating qualities than cement.
Animal Bedding and Absorbent Material : Hemp is a superior
material for animal bedding and litter material for cats and
other pets. Because hemp hurds (stalk cores) are very
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absorbent, they can be used to absorb oil spills and other
pollution control uses.
Soil Erosion Control : Hemp materials are useful to control
erosion. Soil erosion has become a matter of concern across
the country. Hemp can also be used as a good alternative to
plastics to control weeds in new plantings. Hemp can be used
for biodegradable planting pots and other gardening uses.
Cosmetics : Hemp is popularly used in shampoo, soaps and
lotions. It has been reported that hemp lotion is
particularly prized because it can be absorbed into the skin.
Biofuels Potential : Researchers in Europe have touted the use
of hemp for biofuels. Hemp, similar to corn, can be processed
to produce ethanol. A process called pyrolysis - heating in
the absence of air - can convert hemp to a form of charcoal, a
fuel oil or methane. The Purdue study concluded that the
competitive viability of hemp as a biofuel is "doubtful"
because other biomass sources are relatively cheap. However,
the Purdue study concluded that there "may be some potential
for hemp biomass fuel near areas where hemp is cultivated."
Ecological benefits of Hemp : "[Hemp] is . . . exceptionally
suitable for organic agriculture, and is remarkably less
'ecotoxic' in comparison to most other crops." The use of
pesticides and fungicides on hemp is usually unnecessary.
Opponents' Response to Purdue Study
Opponents of this bill argued at the hearing of the bill that
the Purdue study included an industry bias. It appears that
this argument may have been based on links to hemp industry
Websites at the end of the study. These sites or entities were
not listed as sources or references for the study; they appeared
to be included to allow interested parties to review industry
material. The references for the study were very voluminous,
and included academic and government sources.
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Opponents argued that other studies, including studies from
researchers in Kentucky and Wisconsin, have essentially
dismissed the economic potential of hemp. The opponent's
argument in this regard may be overstated. The Wisconsin study
cited by opponents does conclude that hemp is not a panacea for
farmers and the improved farm income from hemp would not likely
be realized for 4-5 years. The study did conclude that hemp
would be "slightly more profitable than traditional row crops,
but less profitable than specialty crops such as tobacco, fruits
and vegetables." It cautioned that widespread planting of hemp
could overwhelm a market that is currently quite small. A
summary of the study published by the University of Wisconsin
stated:
Low grain prices have farmers looking for alternative
crops, and industrial hemp has generated a great deal
of interest. The crop grows under a wide variety of
soil and climatic conditions, and requires few
pesticides. When grown as part of a crop rotation,
industrial hemp can break up pest cycles and help
growers reduce the pesticides they apply to traditional
crops.
In the most comprehensive overview to date, Fortenbery
and his research colleague Michael Bennett, both with
the College of Agricultural and Life Sciences , reviewed
more than 75 studies, articles and reports about
industrial hemp.
"We tried to bring together all the knowledge that has
been accumulated over the last 100 years," Fortenbery
says. The study also identified areas where research
is needed if American farmers are to grow the crop
profitably.
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"If growing industrial hemp became legal overnight, it
would be a useful crop for a few growers. However, it
is not likely to improve farm revenue for at least four
or five years," Fortenbery says. "Studies indicate
that it would be slightly more profitable than
traditional row crops but less profitable than
specialty crops such as tobacco, fruits and
vegetables."
Fortenbery and Bennett caution that widespread
production of industrial hemp would drive down prices
by quickly swamping the small but growing North
American market. The report suggests that just 25,000
acres to 35,000 acres of industrial hemp could meet the
current North American demand for hemp fiber and seed.
Fewer than 100 farms could supply that market, says
Fortenbery. With such a small market, growers would be
vulnerable to wide price fluctuations, he says.
(Emphasis added.)
4. The THC Issue
It is generally accepted that the characteristic "high" produced
from ingestion of marijuana is caused by TCH -
delta-9-tetrahydrocannabinol. However, as noted by the Purdue
study, "cannabis contains a seemingly unique class of chemicals,
the cannabinoids, of which more than 60 have been described, but
only a few are psychoactive. Cannabinoids are produced in
specialized epidermal glands [of the plant], which differ
notably on different organs of the plant." The prohibition on
marijuana is effectively based on the presence of THC in the
flowering tops (buds) and leaves of the plant. Other parts of
the plant essentially have negligible THC content.
Smoked marijuana generally has about 25 times more THC than
hemp and hemp contains an antagonist to THC that cancels the
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effects of THC - smoking any amount of hemp would not
intoxicate the smoker
Industrial hemp has become the term of art for low THC hemp used
for commercial and non-intoxicant purposes. Industrial hemp is
generally defined as cannabis plants with a THC content of less
than 0.3%. The Purdue report states that 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.
(Canadian government experimental standards for medicinal
marijuana are set at 6% TCH.)
Further, the other principal cannabinoids found in cannabis
plants is CBD. CBD antagonizes (cancels or reduces) the effect
of THC. CBD is found in abundance in industrial hemp, but not
in the intoxicant form of cannabis. A ratio 2:1 CBD to THC
suppresses the intoxicating effect of THC. Industrial hemp
typically has a CBD-THC ratio of 5:1. Thus, any possible
intoxicating effect from industrial hemp would be cancelled by
another cannabinoid.
Further, unlike alcohol, the intoxicating effects of TCH are not
cumulative (after the point required to achieve significant
intoxication). The intoxicating effects of THC are produced
when the THC is ingested in a relatively short period of time
and then THC amounts fall, even if the person continues to smoke
marijuana.
Thus, ingesting more of lower THC cannabis cannot make one as
high as smoking a smaller amount of higher THC marijuana. For
example: Cigarette A is made from marijuana with 10% TCH.
Cigarette B is made from marijuana with 5% THC. One would not
get as intoxicated from smoking two B cigarettes of B as one
would from smoking one cigarette of A.
Simply stated, one could smoke a room full of industrial hemp
and not get high.
It has been reported that CBD can be used to synthetically
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produce THC. However, as stated in the Purdue study, "the
illicit drug trade has access to easier methods of synthesizing
THC or its analogues than by first extracting CBD from non-drug
hemp strains." Further, 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 near
hemp fields.
It appears that 0.3% THC has been described as the standard for
industrial hemp largely because this level was the standard for
French farmers. The French have been aggressive in producing
and promoting the crop. France, unlike much of Western Europe,
did not previously ban hemp production. It appears that hemp
was also unrestricted in the Soviet Union and satellite states.
Setting hemp THC standards has been a matter of some dispute in
the European Union. Countries other than France - including
Russia - have developed hemp with lower THC content. It is
likely that hemp with even lower THC concentrations could be
developed.
Hemp seeds have no measurable amounts of THC. Any THC found on
seeds occurs from contact with other parts of the plant. As
industrial hemp has a very low THC content, contamination of the
seeds would appear to be of little concern.
Drug testing concerns - minute amounts of THC in seed
products
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 testing]
programs utilize a THC metabolite level of 50 parts per billion
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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. Nevertheless, the presence of even
minute trace amounts of THC in foods remains a tool that can be
used by those wishing to prevent the hemp oil seed industry from
developing." The Purdue study essentially recommended that
stringent standards be set to reduce the amount of trace THC
that could be found in hemp oil seed products.
Marijuana growers would not likely use hemp fields to hide
marijuana - hemp pollen would ruin marijuana plants
As noted above, marijuana production has shifted to cultivation
of non-seed plants. These plants have much higher
concentrations of THC than seeded plants. Pollen from
industrial hemp fields would ruin illicit marijuana plants. It
is likely that marijuana growers would avoid planting anywhere
near industrial hemp fields.
The camel's nose under the tent argument
Discussions about industrial hemp often note the argument that
the legalization of industrial hemp could be the proverbial
camel's nose under the tent leading to legalization of
marijuana. At its core, this argument appears to assume that
the public could conclude that the clear benefits of industrial
hemp indicate that marijuana, because it comes from the same
species of plant, is an appropriate and beneficial drug. Some
ardent believers in the value of marijuana as a drug could also
believe that the usefulness of hemp indicates that all forms of
cannabis are good and beneficial. Such an argument has no
logical basis.
Some would argue that the "camel's nose" argument is a "straw
man" that is advanced or identified solely for the purpose of
knocking it down. The fact that a plant is particularly
beneficial for one purpose does not mean that it is valuable for
a different and unrelated purpose. The fact that corn can be
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used to make an alcohol-based fuel does not mean drinking
alcohol from corn is good. The fact that a marijuana smoker may
justify his or her habit because hemp is a very beneficial plant
does not mean that the general public would find marijuana any
more acceptable than it is now.
It does not appear that countries that allow hemp cultivation
have higher rates of marijuana consumption than comparable
countries that do no allow cultivation of hemp. Many European
countries have authorized hemp cultivation in the last 15 years
. . . Marijuana use has not risen with hemp production in
Europe. 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 of the European countries with particularly low rates of
marijuana use allow hemp cultivation. In general, marijuana
consumption appears to be tied to the urbanization of a country.
5. Legislation Concerning Industrial Hemp in Other Jurisdictions
Several other states and the Federal Government have attempted
to pass legislation allowing the commercial and personal growth
and development of industrial hemp. The substance of the
proposed legislation has varied, but six states (Hawaii,
Kentucky, Maine, Montana, North Dakota and Virginia) have all
removed barriers to the growth of hemp. However, those states
that have passed legislation have limited growth for research
purposes only and have not sought to redefine criminal marijuana
sections.
Hawaii recently implemented an experiment through permission
from the Drug Enforcement Administration (DEA) to grow
industrial hemp on a one-quarter acre of government land and
under 24-hour security. It appears that the Hawaii hemp
experiment terminated at the end of September 2003. According
to the David P. West, Ph.D., agronomist hired to conduct the
experimental planting, the DEA effectively frustrated attempts
to fully implement the program. Although West was able to
successfully develop a strain of hemp suitable for the climate
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of Hawaii, it appears that the plant material has been lost and
that anyone starting a new program in Hawaii would need to re-do
West's work.
For example, Chinese hemp germplasm was lost while West waited
for permits. West explained in his report that hemp has
traditionally been a temperate climate (most of the mainland
U.S.) crop, not a tropical climate crop. Under tropical
conditions, hemp plants typically mature and reproduce very
fast, such that inadequate fiber and stalk growth occurs.
Canadian hemp seeds proved to be unsuitable for these reasons.
West obtained seed from China and Japan. He was able to
successfully grow large hemp plants through a mixture of Asian
and European plants. He also noted that Hawaii could be used
for winter hemp seed production, as is done with corn.
West stated in his final report:
Under the burden of the DEA's administrative delays,
the project ground to a halt. I decided I had
accomplished all I could in this climate. And it was
time to quit, and, in doing so, to cry "Foul!" at the
DEA's shenanigans.
In this project I was able to demonstrate that the
genetic potential exists within the world's germplasm
[seed resources] to create a variety of hemp capable
of growing in a few months in a tropical environment
a forest of 10 foot plants to provide fiber to any of
a long list of industries. I had the plants
[obtained from China and Europe]; I showed it could
be done. Perhaps, in some reasonable future, it may
be done again. On September 30, 2003, this hemp
germplasm, like Kentucky hemp before it [when hemp
production was outlawed by the federal government],
was lost to humanity.
A hemp research bill was introduced in California in 2002. AB
388 (Strom-Martin), of the 2001-2002 Legislative Session,
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requested that the University of California conduct a study of
the economic opportunities associated with the production of
alternative fiber crops, including industrial hemp, flax and
kenaf. However, Gray Davis vetoed AB 388 in September of 2002
stating, "There are a number of significant concerns regarding
the legality of producing industrial hemp in the United States.
The United States Department of Agriculture concluded that
'legal issues currently preclude research into the viability of
industrial hemp fiber production in the United States.' In
addition, the Drug Enforcement Administration applies the same
strict controls to industrial hemp as it does to marijuana.
That is, it is a Schedule I Controlled Substance under federal
law."
This past year, House Representatives Ron Paul (R-TX) and George
Miller (D-CA) attempted to amend the Federal Controlled
Substances Act by excluding industrial hemp from the definition
of marijuana. This measure (109 H.R. 3037) is currently still
pending in numerous committees, including the House Energy and
Commerce Committee.
This bill (AB 1147) also seeks to exclude industrial hemp from
the definition of marijuana. However, the attempt to exclude
industrial hemp from the definition of marijuana is likely to be
challenged as preempted by federal law.
6. Industrial Hemp Definition in AB 1147 - Contrast with
Federal Schedule I Definition of Marijuana
This bill would change the California definition of
marijuana (in Schedule I of the controlled substance
schedules) to specifically provide that marijuana does not
include "industrial hemp." Under this bill, marijuana
would include "all parts of the plant Cannabis sativa L,
whether growing or not; the seeds thereof; the resin
extracted from . . . the plant;" and every derivative from
the plant. The bill defines industrial hemp thus:
[A]n agricultural field crop that is limited to
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nonpsychoactive varieties of the plant Cannabis
sativa L., having no more than three-tenths of one
percent tetrahydrocannabinol contained in the dried
flowering tops, that is cultivated from seed
originating in California, and that is cultivated and
processed exclusively for the purpose of producing
the mature stalks of the plants 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 which is incapable of germination.
(b) This [definition of industrial hemp] shall not be
construed to authorize the following: (1) 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. (2)
The transportation or sale across state borders of
seed of any variety of Cannabis sativa L. that is
capable of germination. (3) Any cultivation of the
industrial hemp plant that is not grown in a research
setting or as an agricultural field crop.
Nothing in federal law defines marijuana in relation to the
level of THC in the plant. The reference to THC in the
federal scheduling is a separate listing of THC in the list
of hallucinogenic substances. Federal law includes
marijuana as a Schedule I substance. The federal
definition states several exceptions to the definition of
marijuana. These exceptions include "the mature stalks of
such plant, fiber produced from such stalks, oil or cake
made from the seeds of the plant, any other compound,
manufacture, salt, derivative, mixture or preparation of
such mature stalks (except the resin therefrom), fiber, oil
or cake, or the sterilized seed of such plant which is
incapable of germination." (21 U.S.C. 802 (16).)
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7. Issues of Possible Federal Law Preemption Flowing from the
Definition of Industrial Hemp in This Bill
Drug Preemption Issues Generally
The federal Controlled Substance Act of 1970 defined five
schedules of narcotics based on medical uses and the likelihood
of addiction. (21 U.S.C. 801-844.) As noted above, California
and federal law define "marijuana" as all parts of the plant
Cannabis sativa L and derivatives therefrom. However, the
definition of marijuana includes relatively broad exceptions
from the definition of marijuana for the stalks of the plant,
products produced from the stalks, the sterilized seed and oil
and other products made from the seed. (21 USCS 802(16) and
Health & Saf. Code 11018.) Essentially, marijuana is defined
as the leaves, flowering tops and non-sterile seed of the
cannabis plant.
Federal law and California law separately schedule THC, the
primary psychoactive substance in marijuana. (21 U.S.C.
812(17).) California law specifically provides that the
reference to "tetrahydrocannabinols" in Schedule I concerns
synthetic THC. As noted in the "Purpose" section, above,
standing decisions of the federal Ninth Circuit provide that THC
in the federal schedules refers only to synthetic THC, not the
naturally-occurring THC found in (the separately scheduled)
marijuana. However, DEA regulations, based on the inclusion of
THC in Schedule I, purport to ban any product intended for human
consumption that contains any amount of THC, including any
product from a cannabis plant that includes naturally-occurring
THC.
One issue presented by this bill is whether or not the
California law can define "marijuana" differently than federal
law. A significant way in which the Federal Government
regulates state conduct is through the interstate commerce
clause. The United States Constitution states that of the
powers granted to Congress is "[the power] [t]o regulate
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commerce with foreign nations, and among the several states, and
with the Indian Tribes." (United States Const., Art. I, 8.)
The United States Supreme Court has stated that the Congress is
within its right to supersede state drug laws because even
intrastate manufacturing and sales affects a national and
international drug trade that poses a risk to the United States
as a whole. (21 USCS 801, Gonzales v. Raich (2004) 125 S.Ct.
3195.)
The Federal Government may use the interstate commerce clause
to affect state law if the activity regulates the use of the
channels of interstate commerce, the instrumentalities of
interstate commerce, and activities that substantially affect
interstate commerce. (Lopez v. United States (1995) 514 U.S.
549.) In viewing those factors, the court has held that if
legislators have a rational basis for believing that a
regulation affects interstate commerce and the means chosen are
reasonable and appropriate, congressional action will probably
be deemed a fair use of the interstate commerce clause. (Heart
of Atlanta Motel v. United States (1964) 379 U.S. 241 and
Katzenbach v. McClung (1964) 379 U.S. 294.)
There are two analogous cases that might shed light on whether
the State of California may amend its marijuana statute in
manner different than the federal statute. First, in Wickard
v. Filburn, the Supreme Court held that the Agricultural
Adjustment Act of 1938 permitted the Secretary of Agriculture
to regulate the growth and consumption of wheat on every farm
in the United States. The Court reasoned that even one
farmer's growth and consumption has a "cumulative effect" on
the overall wheat industry and, hence, the national economy.
(Wickard v. Filburn (1942) 317 U.S. 111.)
Second, is Raich. In late 2004, the United States Supreme
Court, relying heavily on the aforementioned Wickard case, held
that California could not exempt marijuana for medicinal
purposes from the criminal possession statute. The court based
its ruling on the idea that use of "any commodity, be it wheat
or marijuana, has a substantial effect on the supply and demand
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in the national market for that commodity." (Raich at p.
2208.)
The Preemption Issue in This Bill
It does appear that California controlled substance laws need
not be exactly the same as federal law, especially where
California law does not directly conflict with federal law. For
example, MDMA (so-called ecstasy) is not scheduled in
California, although the drug is not legal under California law.
There is no specific California law banning possession or
distribution of MDMA, although persons who possess or distribute
MDMA can be prosecuted under California law because MDMA is an
analog of specifically banned substances. This state of affairs
is different than the circumstances concerning medical
marijuana, as California law purports to make possession of
marijuana at the recommendation of a physician not a crime.
It appears that the core of the preemption issue presented by
this bill is the following: Does the definition of industrial
hemp under this bill make it legal under California law to grow
specified kinds of cannabis when that activity is illegal under
federal law? Federal law exempts from the definition of
marijuana the stalks of the plant, sterilized seed, and products
made from these parts of the plant. Federal law thus includes
in the definition of marijuana the flowering tops, leaves and
un-sterilized seed of the plant. This bill defines as
industrial hemp - and thus excludes from the definition of
marijuana - the entire cannabis plant, including flowers and
leaves, if the THC content of every part of the plant is very
low. (Even under this bill, the leaves and tops could not be
removed from the field of cultivation and separated from the
rest of the plant.)
Sponsor's Arguments Concerning Preemption
Sponsor Vote Hemp argues that federal law does not preempt this
bill:
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It has been suggested that state legislation
authorizing the cultivation of industrial hemp may be
federally pre-empted because the federal definition
of "Marihuana," listed as a Schedule 1 substance
under the Controlled Substances Act (CSA) at 21
U.S.C. 802(16), covers all varieties and breeds of
the Cannabis Sativa plant, including the special,
distinct breed that is grown as industrial hemp. AB
1147, however, has been specifically designed to
avoid any conflict with the federal CSA and should
not be federally pre-empted.
AB 1147 (1) requires the planting of industrial hemp
seed originating in California and (2) permits only
those parts of the hemp plant that are exempted from
the CSA's definition of "Marihuana" to enter
interstate commerce. In 2004, the Ninth Circuit held
that the CSA's definition of "Marihuana" clearly
exempts non-psychoactive hemp (e.g. sterilized seed,
oil and fiber) from regulation under the CSA. Hemp
Indus. Ass'n v. DEA, 357 F.3d 1012, 1018 (9th Cir.
2004). The federal government did not seek Supreme
Court review of this decision.
The U.S. Supreme Court has made clear that, under the
Commerce Clause of the U.S. Constitution, Congress
has the power to regulate activities that
"substantially affect" interstate commerce and that
even a purely local activity "'may still, whatever
its nature, be reached by Congress if it exerts a
substantial economic effect on interstate commerce.'"
Gonzales v. Raich, 125 S.Ct. 2195, 2205-06 (2005),
quoting Wickard v. Filburn, 317 U.S. 111, 125 (1942).
Under AB 1147, however, the only activity that will
affect interstate commerce is the sale of
non-psychoactive hemp fiber, sterilized seed and oil,
substances that are not covered at all by the CSA.
While viable hemp seed will be traded in some fashion
intrastate, this activity will have no affect on
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interstate commerce because there is no national
market for that commodity. (Gonzales v. Raich, 125
S.Ct. at p. 2207.)
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The Supreme Court's decision in Gonzales v. Oregon,
No. 04-623 (2006), provides additional support for AB
1147 not being federally pre-empted. The Court
recognized the CSA's chief purpose is to combat
"recreational drug abuse." (Slip Op., at p. 25.)
The court noted that the CSA itself provides that,
"absent a positive conflict, none of the Act's
provisions should be construed as indicating an
intent" to exclude state law. (Id. at 24.) Here,
industrial hemp is clearly not a recreational drug
and, as AB 1147 is drafted, the federal government
will be hard pressed to show a positive conflict
between it and the CSA.
AB 1147 does not undermine . . . efforts to combat
recreational drug abuse. In fact, to specifically
address any potential impact the bill might have on
drug enforcement, AB1147 prohibits growth of
industrial hemp outside a research or agricultural
field crop setting. Any living Cannabis plant,
whether hemp or marijuana, grown outside of these
specified locations, is considered marijuana under AB
1147. Further, removal from the field of cultivation
of leaves and flowering tops of the industrial hemp
plant is prohibited to avoid spurious claims that
marijuana is industrial hemp. These prohibitions
should negate the bill's potential impact on
enforcement of federal and state marijuana laws.
Accordingly, AB 1147 is not in positive conflict with
the CSA and, therefore, not subject to federal
pre-emption.
8. The Hemp Industries Cases
In two related cases - Hemp I and Hemp II - the Ninth
Circuit Court of Appeals considered whether or not the
scheduling of THC in Schedule I of the federal controlled
substance schedules includes any parts of cannabis plant
that contain THC. (Hemp I - (9th Cir. 2003) 333 F.3d 1082;
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Hemp II - (9th Cir.) 357 F.3d 1012.) Marijuana is
separately scheduled under federal law. The definition of
marijuana in the federal schedules excludes the mature
stalks of the plant, sterile seed of the plant, and
products made therefrom.
The DEA has issued regulations stating that because THC is
specifically included in the controlled substance
schedules, any product intended for human consumption that
contains THC is illegal. (The initial regulations stated
that "any product that contains any amount of THC" is a
controlled substance.) The Ninth Circuit in Hemp I and
Hemp II essentially rejected the DEA regulations. Hemp I
and II found that THC in the federal schedules refers to
synthetic THC only, not THC that occurs naturally in the
cannabis plant. The court found that if the scheduling of
THC included naturally occurring THC there would be no need
to separately schedule marijuana, as the psychoactive
substance in the marijuana plant is THC. Further, Hemp II
found that the DEA had improperly failed to follow
essential procedures for issuing the regulations banning
any product intended for human consumption that contained
any THC, regardless of whether the product was essentially
excepted from definition of marijuana in Schedule I.
The DEA regulations have not been changed. The Ninth
Circuit decisions in Hemp I and Hemp II are in effect. The
DEA did not challenge the decisions.
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