BILL ANALYSIS �
SB 676
Page 1
Date of Hearing: June 21, 2011
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 676 (Leno) - As Amended: June 15, 2011
SUMMARY : Authorizes an eight-year, five-county pilot project
with respect to the cultivation and processing of industrial
hemp. Specifically, this bill :
1)Makes various legislative declarations and findings on
industrial hemp.
2)Permits a pilot program for industrial hemp research by
established agricultural research institutions as specified,
and for the agricultural production of hemp in five counties.
3)Defines "industrial hemp" as an agricultural field crop
limited to the non-psychoactive varieties of the of the plant
Cannabis sativa L., having no more than three-tenths of 1%
tetrahydrocannabinol (THC) contained in the dry flowering tops
and cultivated from seeds originating in California, and
processed exclusively for the purpose of producing the mature
stalks of the plant fiber produced from the stalks, oil or
cake made from the seeds of the plant, or any other compound,
manufacture, salt, derivative, mixture, or preparation of the
mature stalks (except the resin or flowering tops extracted),
fiber, oil, or cake, or the sterilized seed of the plant which
is incapable of germination.
4)Provides that the statutory definition of marijuana does not
include industrial hemp.
5)Clarify that industrial hemp shall include the defined hemp
products in the 2007 Harmonized Tariff Schedule of the United
States.
6)Prohibits the cultivation, production, or possession of resin,
flowering tops, or leaves that have been removed from the
field of cultivation and separated from the other constituent
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parts of the industrial hemp plant.
7)Prohibits transportation or sale of any Cannabis sativa L.
seed capable of germination across state borders except as
permitted by federal law.
8)Requires industrial hemp farmers to post signs identifying the
crop, as specified.
9)Regulates the plot size of industrial hemp farms, and
specifically prohibits tending of individual plants.
10)Requires industrial hemp growers, except those that are
established agricultural research institutions, to obtain a
laboratory test report indicating TCH levels prior to
harvesting, as specified.
11)Specifies the requirements of the testing regimen to be used
to ensure program hemp has no psychoactive properties.
12)Requires the destruction of hemp within 48 hours if the first
laboratory test results indicate a THC content over 1%, and
the destruction of the hemp within 45 days if a second
laboratory test report indicates a THC content over 0.3%.
13)Requires industrial hemp growers to retain an original,
signed copy of the laboratory test report for two years to be
made available to law enforcement officials or their
designees, and to persons purchasing, transporting, or
otherwise obtaining the industrial hemp.
14)Specifies the agricultural production pilot program shall
take effect only in Imperial, Kings, Kern, San Joaquin, and
Yolo Counties.
15)Requires the Department of Justice (DOJ) to report to
specified legislative committees, on or before January 1,
2018, and reported incidents of a field of industrial hemp
being used to disguise marijuana cultivation, and claims in a
court hearing that marijuana is industrial hemp, except where
the person making the claim is subject to a specified
exemption.
16)Requires the Hemp Industries Association to submit economic
impact reports to the Legislature by January 1, 2018.
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17)Includes a January 1, 2020 sunset provision.
EXISTING STATE LAW :
1)Defines "marijuana" as all parts of the plant Cannabis sativa
L., whether growing or not; the seeds thereof; the resin
extracted from any part of the plant; and every compound,
manufacture, salt, derivative, mixture, or preparation of the
plant, its seeds or resin. It does not include the mature
stalks of the plant, fiber produced from the stalks, oil or
cake made from the seeds of the plant, any other compound,
manufacture, salt, derivative, mixture, or preparation of the
mature stalks (except the resin extracted therefrom), fiber,
oil, or cake, or the sterilized seed of the plant which is
incapable of germination. �Health & Safety Code HSC) Section
11018.]
2)States that except as otherwise provided by law, every person
who plants, cultivates harvests, dries, or processes, any
marijuana, or any part thereof, except as otherwise provided
by law, shall be punishable by imprisonment in the state
prison. (HSC Section 11358.)
3)States that except as otherwise provided by law, every person
that possesses marijuana for the purposes of sale shall be
punished by imprisonment in the state prison. (HSC Section
11359.)
4)States that except as authorized by law, every person who
possesses any concentrated cannabis shall be punished by
imprisonment in the county jail for a period of not more than
one year or by a fine of not more than $500, or by both such
fine and imprisonment, or shall be punished by imprisonment in
the state prison. �HSC Section 11357(a).]
5)States that except as authorized by law, every person who
possesses not more than 28.5 grams of marijuana, other than
concentrated cannabis, is guilty of an infraction punishable
by a fine of not more than $100. �HSC Section 11357(b).]
6)States that except as authorized by law, every person who
possesses more than 28.5 grams of marijuana, other than
concentrated cannabis, shall be punished by imprisonment in
the county jail for a period of not more than six months or by
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a fine of not more than $500, or by both such fine and
imprisonment. �HSC Section 11357(c).]
7)States that except as authorized by law, every person 18 years
of age or over who possesses not more than 28.5 grams of
marijuana, other than concentrated cannabis, upon the grounds
of, or within, any school providing instruction in
kindergarten or any of grades 1 through 12 during hours the
school is open for classes or 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. �HSC Section
11357(d).]
8)States that except as authorized by law, ever person under the
age of 18 who possesses not more than 28.5 grams of marijuana,
other than concentrated cannabis, upon the grounds of, or
within, any school providing instruction in kindergarten or
any of grades 1 through 12 during hours the school is open for
classes or school-related programs is guilty of a misdemeanor
and shall be punished by a fine of nor more than $250 for a
first offense, or a fine of not more that $500 or commitment
to a juvenile facility, as specified, upon a finding that
second or subsequent offense has been committed. �HSC Section
11357(e).]
EXISTING FEDERAL LAW :
1)Places controlled substances in five schedules, ranked by
medical benefit and potential for abuse. Schedule I
controlled substances are deemed to have no medical benefits
and high potential for abuse. (21 U.S.C. Section 812.)
2)Defines "marijuana" as "all parts of the plant Cannabis sativa
L., whether growing or not; the seeds thereof; the resin
extracted from any part of such plant; and every compound,
manufacture, salt, derivative, mixture, or preparation of such
plant, its seeds or resin. Such term does not include the
mature stalks of such plant, fiber produced from such stalks,
oil or cake made from the seeds of such plant, any other
compound, manufacture, salt, derivative, mixture, or
preparation of such mature stalks (except the resin extracted
therefrom), fiber, oil, or cake, or the sterilized seed of
such plant which is incapable of germination." �21 U.S.C.
Section 802(16).]
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3)Lists marijuana as a schedule I controlled substance.
(21.U.S.C. Section 812.)
4)Lists THC as a separate schedule I substance. (21 U.S.C.
Section 812.)
5)Provides, in the supremacy clause, that if federal law has
preempted state law, either expressly or implied, then state
law is required to yield. (US Constitution, Article 6, Clause
2.)
6)Provides in the Commerce Clause that Congress has the
exclusive authority to manage commerce between the states,
with foreign nations, and Indian tribes. (US Constitution
Article 1, Section 8, Clause 3.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author," SB 676 is about
job creation and allowing farmers to choose crops that suit
their business needs and prospects. Preventing American
farmers from cultivating industrial hemp has created a growing
market for other countries to supply the state's food and
personal care product manufacturers. The U.S. imports
millions of pounds of hemp fiber, seed and oil. The current
U.S. market for industrial hemp products is $400 million and
growing at a rate of $26 million per year. Of the U.S.-based
hemp product companies, more than 55 percent are based in
California, many of which would expand their business if a
local and more economical source of industrial hemp was
available. These are our companies and our farmers should
able to supply them.
"In addition to the economic opportunities, hemp is an
environmentally-friendly and sustainable crop that reduces the
use of chemicals and saves farmers money. Hemp requires
little or no pesticides and herbicides, puts nutrients back
into the soil and leaves the field virtually free of weeds
making it an excellent rotational crop. As a source for
paper, hemp produces more fiber per acre than timber and hemp
matures in 90 days as opposed to the decades required for
timber. Hemp can also be used for plywood-type building
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materials. Over time, hemp cultivation could allow us to meet
an ever growing demand for paper products as well as the
demand for building materials traditionally met by timber.
"Industrial hemp, by definition, has no psychoactive
properties and is distinct from marijuana; however, the bill
has been carefully crafted to address concerns of law
enforcement. The bill establishes a limited pilot program and
hemp cultivation is permitted only as an agricultural field
crop or in an established research setting. Upon request of
law enforcement, farmers must show the lab report verifying
that THC level of the crop meets the three-tenths of one
percent THC standards. All crops that fail THC requirement or
failure to meet other requirements outlined in the will be
considered marijuana under the law. Although they contain no
psychoactive properties and have no legal commercial
application, all industrial hemp flowering tops and leaves
that are removed from the field of cultivation are still
defined as marijuana in the bill. This ensures that in the
event of a drug bust, law enforcement does not need to
question if cannabis leaves are hemp or marijuana."
2)Research Study from Purdue University : In 2002, researchers
at Purdue University published an exhaustive study of the
potential value for hemp cultivation in the United States.
(See .)
The study noted: Hemp "is extremely unusual in the diversity
of products for which it is or can be cultivated."
a) 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.
b) 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.
c) Pulp and Paper: Hemp is useful for applications such as
currency where strength is needed, but is not currently
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competitive with wood pulp for newsprint and general paper
uses.
d) 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.
e) Building Construction Products: Hemp is increasingly
used for insulation in Europe. Hemp fiberboard is strong
and hemp could be used in high-quality concrete and
building products.
f) 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.
g) Soil Erosion Control: Hemp materials are useful to
control erosion and are good alternatives to plastics for
weed control and planting material.
h) Cosmetics: Hemp is popularly used in shampoo, soaps and
lotions.
i) Biofuels Potential: Researchers in Europe have touted
hemp biofuels.
j) 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.
3)Federal Preemption : The United States Constitution states
that of the powers granted to Congress is "�the power] �t]o
regulate commerce with foreign nations, and among the several
states, and with the Indian Tribes." (United State
Constitution Article I, Section 8.)
Also, Congress has the power to preempt state law under the
Constitution's supremacy clause. (U.S. Constitution, article
VI, clause 2.) However, there is a strong presumption against
preemption of the historic powers police of the states, which
include state criminal sanctions for drug possession. �County
of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798,
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822-823.]
The California Supreme Court has identified four categories of
federal preemption: express, conflict, obstacle, and field.
Express preemption occurs when Congress explicitly states the
extent to which its enactments pre-empt state law. Conflict
preemption arises when it is impossible to simultaneous comply
with both state and federal directives. Obstacle preemption
applies when under the circumstances of a particular case, the
challenged state law stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress. Finally, field preemption arises
where the scheme of federal regulation is sufficiently
comprehensive to make reasonable the inference that Congress
left no room for supplementary state regulation in a
particular area of law. �Viva! Internat. Voice for Animals v.
Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th
929, 935-936, fn. omitted.]
Several cases have recognized that express and field preemption
do not apply to state drug laws because of language expressly
contained in the federal Controlled Substances Act. (See
e.g., Qualified Patients Assn. v. City of Anaheim (2010) 187
Cal.App.4th 734, 758; County of San Diego v. San Diego NORML,
supra, 165 Cal.App.4th at p. 819.) Specifically, 21 U.S.C.
Section 903 says, "No provision of this subchapter shall be
construed as indicating an intent on the part of the Congress
to occupy the field in which that provision operates,
including criminal penalties, to the exclusion of any State
law on the same subject matter." The issue, then, is whether
the State of California can redefine "marijuana" differently
than federal statute and not violate principles of conflict or
obstacle preemption.
The federal Controlled Substance Act defines marijuana as "all
parts of the plant Cannabis sativa L., whether growing or not;
the seeds thereof; the resin extracted from any part of such
plant; and every compound, manufacture, salt, derivative,
mixture, or preparation of such plant, its seeds or resin . .
. . " �21 U.S.C Section 802(16).] While industrial hemp is a
specially-bred, non-psychoactive variety of the species
Cannabis sativa L., the plant still belongs to that species.
On the other hand, federal law excludes from the definition of
marijuana the "stalks of �the] plant, fiber produced from such
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stalks, oil or cake made from the seeds of such plant, any
other compound, manufacture, salt, derivative, mixture, or
preparation of such mature stalks (except the resin extracted
there from), fiber, oil, or cake, or the sterilized seed of
such plant which is incapable of germination." �21 U.S.C
Section 802(16).] An argument can be made that industrial
hemp falls within this latter exclusion. Also, in contrast to
the definition of industrial hemp in this bill, nothing in the
federal law defines marijuana in relation to the level of THC
in the plant.
In December, 2010, a Congressional Research Study on Hemp as an
Agricultural Commodity was released (see
) and provided
an overview of Cannabis varieties and a comparison of hemp and
marijuana:
"There are many different varieties of cannabis plants.
Marijuana and hemp come from the same species of plant,
Cannabis sativa, but from different varieties or cultivars.
However, hemp is genetically different and is distinguished by
its use and chemical makeup.
"Hemp . . . is characterized by plants that are low in THC
(delta-9 tetrahydrocannabinol, marijuana's primary
psychoactive chemical). THC levels for hemp are generally
less than 1%.
"Marijuana refers to the flowering tops and leaves of
psychoactive cannabis varieties, which are grown for their
high content of THC. Marijuana's high THC content is
primarily in the flowering tops and to a lesser extent in the
leaves. THC levels for marijuana are much higher than for
hemp, and are reported to average about 10%; some sample
tests indicate THC levels reaching 20%- 30%, or greater.
"A level of about 1% THC is considered the threshold for
cannabis to have a psychotropic effect or an intoxicating
potential." (2010 CRS, Hemp as an Agricultural Commodity, p.
1.)
Since this Congressional Research Report came out,
Representative Ron Paul has introduced "The Industrial Hemp
Farming Act of 2011" to amend the Controlled Substances Act to
exclude hemp from the definition of marihuana. The Act
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specifies that the term "marijuana" does not include
industrial hemp, which the Act defines based on its content of
delta-9 tetrahydrocannabinol (THC), marijuana's primary
psychoactive chemical. Such a change could remove low-THC hemp
from being included by the CSA as a controlled substance and
subject to Drug Enforcement Agency regulation, thus allowing
for industrial hemp to be grown and processed under some state
laws.
Additionally, several states have passed or sought to pass to
pass hemp legislation. The substance of the proposed
legislation has varied, but at least eight states (Hawaii,
Kentucky, Maine, Maryland, Montana, North Dakota, Oregon,
Vermont, and West Virginia) have sought to remove barriers to
the cultivation of hemp. (See 2010 CRS, Hemp as an
Agricultural Commodity, p. 17.)
4)Argument in Support : According to the Drug Policy Alliance ,
"Industrial hemp is a crop that is grown and processed
throughout the world for paper, clothing, canvas, rope, food
and body care products, automotive parts, and many other
commercial uses. Unique to industrial hemp are the strength of
its fibers and the unusually healthy balance of amino acids in
the seed oil. The fiber is among the strongest natural fiber
in the world and it can be used to replace wood pulp as well
as synthetic fibers in numerous applications. The oil replaces
artery-clogging trans fats with healthy fats necessary for
balanced nutrition.
"Demand for hemp products has been growing rapidly in recent
years and California farmers would benefit from this growth.
The benefits for farmers are not only financial, but also
practical. Industrial hemp is an excellent rotational crop
because it naturally reduces nematode populations while its
dense growth smothers out weeds. Hemp requires less water and
agricultural chemicals than other crops and has deep roots
that leave the soil in excellent condition for the next crop.
"The environmental benefits of hemp as a replacement for wood
pulp and as a fiber woven with cotton for fabric, as well as
the agricultural benefits of reduced pesticide and herbicide
use and improved soil conditions, all point to the need to
foster the cultivation of hemp. California law should be
changed to permit the cultivation of industrial hemp as an
agricultural crop."
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5)Argument in Opposition : According to the Association for Los
Angeles Deputy Sheriffs , "Hemp is virtually indistinguishable
from marijuana, and thus cultivation will seriously undermine
the ability of law enforcement to enforce marijuana laws.
Further, SB 676 contravenes federal law (21 USC 802) and
passage will create confusion to growers who may not
understand they would be subject to federal prosecution even
if growing hemp were permitted by state law. Creating
physical or legal ambiguity is not good criminal justice
policy, and thus, we are opposed to this measure."
6)Related Legislation : AB 1017 (Ammiano), of the 2011-12
Legislative Session, would have the penalty for the
cultivation of marijuana an alternate felony/misdemeanor. AB
1017 failed passage on the Assembly Floor.
7)Prior Legislation :
a) AB 684 (Leno), of the 2007-08 Legislative Session, was
substantially similar to this bill and would have permitted
the cultivation of industrial hemp in California under a
pilot program in five counties. AB 684 was vetoed. In his
veto message, Governor Schwarzenegger stated:
"Under federal law, all cannabis plants, regardless of
variety or THC content, are simply considered to be
"marijuana", which is a federally regulated controlled
substance. Any person in the United States that wishes to
grow cannabis plants for any purpose, including industrial
purposes, must first obtain permission and register with
the U.S. Drug Enforcement Administration (DEA). Failure to
do so would be a violation of federal law and could subject
an individual to criminal penalties.
"In addition, California law enforcement has expressed
concerns that implementation of this measure could place a
drain on their resources and cause significant problems
with drug enforcement activities. This is troubling given
the needs in this state for the eradication and prevention
of drug production."
b) AB 1147 (Leno), of the 2005-06 Legislative Session,
would have permitted the cultivation of industrial hemp in
California. AB 1147 was vetoed. In his veto message,
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Governor Schwarzenegger stated that hemp is still
considered a cannabis plant regardless of its THC content
and, therefore, illegal under federal law.
c) AB 388 (Strom-Martin), of the 2001-02 Legislative
Session, requested the University of California to conduct
a study of the economic opportunities associated with the
production of alternative fiber crops, including industrial
hemp. AB 388 was vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
American Hemp Inc.
Azida, Inc.
Business Alliance for Commerce in Hemp
California Certified Organic Farmers
California Conference of Machinists
California Grange
California Teamsters Public Affairs Council
Calyx Clothing
Colorganics Inc.
Dash Hemp
Dr. Bronner's Magic Soaps
Drug Policy Alliance
Green Field Paper Company
Hemp House
Hemp Shield
Hemp Technologies
Hemp Traders
Imperial County Farm Bureau
Instituto Laboral De La Raza
Jungmaven Ltd.
Living Harvest Foods
Nutiva
Santa Barbara Hemp
Sartori Movement
Skin and Coat Supplement
United Food & Commercial Workers Union, Local 5
United Food & Commercial Workers Union, Western States Council
United Food & Commercial Workers - Western States Conference
Vote Hemp
One private individual
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Opposition
Association for Los Angeles Deputy Sheriffs
California Narcotic Officers' Association
California Peace Offices' Association
California Police Chiefs Association
Riverside Sheriffs' Association
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744