The Colorado Hemp Production Act of 1995Farms and Forests without Marijuana

by Thomas J. Ballanco
Published in:
University of Colorado Law Review, Volume 66, Issue 4 (1995)

IntroductionThe Differences Between Hemp and MarijuanaThe Benefits of Hemp ProductionThe Hemp Production ActHemp Production Under Federal LawConclusionReferences

“Make the most you can of the Indian Hemp seed and sow it everywhere.”

— George Washington, 1794 (1)

Introduction

Colorado became the first state in the country to take legislative action aimed at re-establishing a commercial hemp industry, when State Senator Lloyd Casey introduced the Colorado Hemp Production Act of 1995 (2) (Colorado Act) on January 25, 1995. Earlier, in November 1994, Kentucky Governor Breton Jones established a commission to decide how to re-create the industry in that state. (3) The commission has been studying the prospect informally for eighteen month s and intends to allow Kentucky farmers to begin planting hemp as soon as possible.(4) As of this writing, at least six other states are taking action to revive the dormant commercial hemp industry.(5) This Comment explores the Colorado Act in light of current federal law and explains how domestic hemp production can proceed while maintaining existing prohibitions against marijuana.

The Differences Between Hemp and Marijuana

Hemp is an ancient fiber and seed crop that is often described as marijuana’s misunderstood cousin. (6) The once prosperous American hemp industry was dealt a fatal blow when it was made the inadvertent victim of the Marihuana Tax Act of 1937 (7) (“1937 Act”). While hemp and marijuana are both products derived from the same plant species, Cannabis sativa, they are produced independently by different Cannabis strains.(8) Hemp generally refers t o the high fiber Cannabis varieties that have extremely low tetrahydrocannabinol (THC) content.(9) THC is a Cannabis by-product that is found in the resin secreted by the plant, and it is this ingredient that gives marijuana its psychoactive properties.(10) Marijuana refers to the leaves and flowers of certain Cannabis species containing one percent to ten percent THC concentrations.(11) High-fiber hemp strains are incapable of producing marijuana, and high-THC marijuana strains produce small amounts of low-quality fiber.(12)

In order for Cannabis plants to be classified as hemp under European Economic Community standards, which have been proposed in Kentucky and Colorado, the plants must contain no more than 0.3% THC.(13) Marijuana on the other hand, ranges from one percent to over ten percent THC.(14) THC was only identified as the active ingredient in marijuana in 1974,(15) so classification based on psychoactive content was not possible when Cannabis was first regulated in the 1930s. In 1995 however, a simple chemical analysis can accurately differentiate between Cannabis-hemp and Cannabis-marijuana.(16) The European Economic Community certifies twelve Cannabis seed varieties that produce only high-fiber, low-THC hemp.(17)

Benefits of Hemp Production 

Hemp is touted by activists and environmentalists as a possible solution to deforestation.(18) Activists claim that hemp, the source of the world s longest and strongest natural fiber, is a far more efficient source of industrial fiber and pulp for paper than timber.(19) According to industry estimates, up to fifty percent of the annual commercial timber harvest is chipped for use in industrial fiber products, such as particle board and as pulp for paper mills. (20)

Less than twenty percent of the harvest is used as raw lumber for planks and beams.(21) A dated United States Department of Agriculture (“U.S.D.A.”) report claims that an acre of hemp can produce four times as much pulp and fiber as an acre of trees.(22) However, recent reports from Europe, Australia, and Canada indicate that the pulp and fiber return from hemp may be even greater than the old U.S.D.A. estimates.(23) Additionally, unlike kenaf and other alternative paper crops, hemp can grow in a variety of climates.(24) Farmers claim that they can grow hemp without pesticide or herbicide application because it grows quickly and is not likely to fall to disease.(25) Hemp also has water and fertilizer requirements similar to corn and wheat.(26)

In addition to fiber, hemp produces cellulose-rich hurds and seeds. The hurds are used to make paper and a variety of other cellulose-based products ranging from insulation to degradable plastics.(27) Hemp seeds are a rich source of oil and, like soy beans, are very high in protein.(28) Hemp seed oil contains several essential fatty acids which some researchers claim strengthen the human immune system.(29) The seed oil can also be synthesized into methanol and burned like diesel fuel.(30) While some of these applications are established aspects of the hemp-fiber industry, strong and plentiful fibers along with edible seeds continue to be hemp s most attractive economic qualities.(31) Industrial hemp’s economic potential interests many Colorado farmers who are eager to begin production.(32)

The Colorado Hemp Production Act of 1995

The Colorado Act attempts to clarify the language in the 1937 Act by defining hemp as “all parts of the plant Cannabis sativa L. … contain[ing] less than one and four-tenths percent [1.4%] concentration of THC.”(33) It also amends the definitions of marijuana and marijuana concentrate to include only those Cannabis plants that contain an amount equal to or more than 1.4% THC.(34) As a safety provision, the Colorado Act includes a requirement that hemp plants contain cannabidiol (CBD) in concentrations equal to or greater than the THC concentration.(35) Plants with high CBD content overpower any psychoactive effects associated with the THC.(36) The Colorado Act requires t he commissioner of the state Department of Agriculture to license all hemp farmers and handlers in the state, and to designate authorized sources of industrial hemp seed.(37) Under the Colorado Act, farmers may only plant designated hemp cultivars, and hemp fields must be inspected at least twice during the growth cycle with samples taken for THC analysis.(38) Crops that exceed the THC limits must be destroyed at the farmer’s expense.(39) The Colorado Act incorporates a 0.4% buffer between hemp and marijuana requiring criminal prosecution only when crops test greater than 1.4% THC.(40) However, this is an unlikely consequence because generally no commercial hemp strains produce THC concentrations greater than one percent.(41)

Hemp Production Under Federal Law 

As of this writing, the United States Drug Enforcement Administration (“D.E.A.”) fails to acknowledge the difference between hemp and marijuana.(42) A letter faxed by the Special Agent in Charge of the D.E.A.’s Rocky Mountain Division to the members of the Colorado State Senate Committee on Agriculture just two hours before the final committee hearing on the Colorado Act caused the committee to postpone the measure indefinitely.(43) The letter characterized the Colorado Act as a subterfuge, charging that the Colorado Act was no more than a shallow ruse being advanced by those who seek to legalize marijuana.(44) The D.E.A. expressed concern that, if passed, the Colorado Act would add the force of a Colorado statute to the perception that marijuana is “OK.”(45)

The letter also pointed out that in the D.E.A.’s opinion, the Colorado Act would conflict with standing federal law.(46) The federal law cited by the D.E.A. defines marihuana 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.”(47)

This statutory language is identical to that in the 1937 Act.(48) Before passage of the 1937 Act, proponents of marijuana regulation had assured Congress that this language would not interfere with the legitimate commercial hemp industry.(49) In 1937 and again in 1945, Congress made clear that it was not delegating to the Federal Bureau of Narcotics (“F.B.N.”) the authority to destroy the legitimate commercial hemp industry.(50)

After the 1937 Act began to impede the domestic hemp industry in the late 1930s, the United States Army and Navy, large consumers of hemp for rope and canvas, relied on imports from the Philippines to meet their needs.(51) When the Philippines fell to the Japanese in early 1942, the United States was left without a source of hemp.(52) The government responded by launching the Hemp for Victory campaign that encouraged American farmers to grow hemp.(53) Between 1942 and 1945, without any change in the federal law, the United States cultivated over 400,000 acres of hemp.(54)

After World War II ended, the commercial hemp industry began to decline, due in part to the F.B.N.’s registration requirements.(55) In 1945, at the request of commercial hemp farmers, the United States Senate conducted hearings regarding the coverage of certain drugs under the federal narcotics laws.(56) During testimony before the Senate Finance Committee, William S. Wood, Deputy Commissioner of the F.B.N.,(57) commenting on the definition o f marijuana, guaranteed that the definition would not have a negative impact on the commercial hemp industry.(58) In fact, the Rens Hemp Company raised industrial hemp in Wisconsin legally under the federal definition of marijuana until 1957.(59) But by 1958, there were no longer any commercial hemp producers in the United States.(60) In 1970, Congress repealed the 1937 Act(61) and replaced it with the current federal narcotics law, the Comprehensive Drug Abuse Prevention and Control Act of 1970 (62) (“1970 Act”). During passage of the 1970 Act, Congress did not amend the federal statutory definition of marijuana,(63) nor did it express an intent to do so.(64) In fact, the House commission explicitly recommended exempting the emergency production of hemp from prohibition.(65) The 1970 Act expresses an intent(66) to bring the United States into compliance with the United Nations Single Convention on Narcotic Drugs of 1961.(67) The Convention recognizes that there is a difference between Cannabis grown for its resin (marijuana) and Cannabis grown exclusively for industrial purposes.(68) The Convention also exempts industrial Cannabis from coverage and requires parties to the Convention only to adopt such measures as may be necessary to prevent the misuse of, and all traffic in, the leaves of the cannabis plant.(69) This is exactly what the Colorado Act attempts to accomplish.

In 1973, President Nixon transferred drug enforcement authority from the Treasury Department to the Justice Department, abolishing the F.B.N. and creating the D.E.A.(70) The Reorganization Plan mentions narcotics and marijuana but neither limits nor expands the D.E.A. s authority beyond that of the F.B.N.(71) This transfer was the last federal executive or legislative action that could have affected the federal statutory definition of marijuana. When attempting to discern the meaning of the federal definition of marijuana, courts have consistently returned to the intent of the 1937 Congress.(72)

However, these cases all involved questions about Cannabis in the drug context. No federal or state court has ever extended the federal statutory definition of marijuana to include the legitimate commercial hemp industry.(73)

The Colorado Act was the first legislative attempt by a state to revive its commercial hemp industry. The D.E.A.’s position on that legislation reflects an intent to wipe out the legitimate hemp industry.(74) Such an intent seems to exceed that agency’s delegated authority under the ultravires doctrine.(75) If Congress did somehow delegate authority to the D.E.A. to include commercial hemp crops in the definition of marijuana, then that agency’s 1995 position represents a reversal of policy in existence since 1957 (when the F.B.N. knew that the Rens Hemp Company was growing hemp in Wisconsin) (76) and, in effect, creates law.(77)

This reversal should impose the notice and comment requirements of section 553 of the Administrative Procedure Act,(78) with which the D.E.A. did not comply.(79)

In short, no federal law or authority should prevent farmers in Colorado or any other state from raising legitimate industrial hemp crops. To quote Harry Anslinger, “they can go ahead and raise hemp just as they have always done it.”(8 0)

Conclusion 

Other federal actions reflect an ambiguity that, at least implicitly, notes a difference between hemp and marijuana. As recently as June 3, 1994, President Clinton issued an executive order that lists hemp as one of several strategic crops that are essential to national security in times of crisis.(81) The U.S.D.A. retained ten bags of hemp seed from the Hemp for Victory program at the National Seed Laboratory in Ft. Collins, Colorado, for future emergencies. When those seeds were tested in 1994, however, they were not viable, leaving the United States without the means to produce one of its designated strategic crops.(82) In this era of thermonuclear war, it is unlikely that hemp, or any other crop, is essential to the national defense. Yet hemp’s environmental and economic promise have spurred research efforts in several countries and incrementally imposing general, extra-statutory obligations ). may contribute to our future economic security.

As of 1994, the governments of Canada, Australia, Great Britain, and the Netherlands all permitted their farmers to grow hemp crops for research and limited industrial applications.(83) France, Spain, Poland, Romania, Hungary, Slovenia, China, and Russia, on the other hand, continue to produce industrial hemp as they have for hundreds, and in some cases, thousands of years.(84) Cannabis-hemp strains are distinct from psychoactive Cannabis-marijuana strains and th is distinction is identifiable and predictable. There is a cognitive difference, a botanical difference, and a legal difference. If the federal government adopted the Colorado Act’s new definition of marijuana, existing law would be clarified. This clarification would allow for the strict regulation of narcotics, while preventing the D.E.A. from continuing to misinterpret the federal law and the inadvertent suppression of the legitimate hemp industry.

References 

1. Note from President George Washington to Mt. Vernon’s gardener (1794), reprinted in CHRIS CONRAD, HEMP: LIFELINE TO THE FUTURE 305 (1993).

2. Colo. S.B. 132, 60th Gen. Assembly, 1st Gen. Sess. (1995).

3. Kentucky to Study Hemp, LEXINGTON REG., Nov. 25, 1994, et al.

4. Telephone Interview with Jake Graves, Member of the Kentucky Governor’s Task Force on Hemp and Related Products Commission (Jan. 25, 1995).

5. Oregon, California, and Hawaii are considering legislation similar to the Colorado Act, while the state Departments of Agriculture in Wisconsin, Minnesota, and Georgia are negotiating with the U.S. Drug Enforcement Administration to find a way for their farmers to legally cultivate hemp. Telephone Interview with David Martin and Laura Kriho, Members of the Colorado Hemp Initiative Project (Apr. 3, 1995).

6. Julie Deardorff, Clothing Industry Going to Pot, CHI. TRIB., Jan. 24, 1995, at A12.

7. Pub. L. No. 75-238, ch. 553, 50 Stat. 551 (1937) (repealed 1970). But see Taxation of Marihuana: Hearings on H.R. 6906 Before the Senate Comm. on Finance, 75th Cong., 1st Sess. 7, (17) (1937) [herein after Hearings] (statement of Clinton M . Hester, Assistant General Counsel, U.S. Dep’t of Treasury: The production and sale of hemp and its products for industrial purposes will not be adversely affected by this bill.) (statement of Harry J. Anslinger, Commissioner, Federal Bureau of Narcotics : I would say [persons engaged in the legitimate uses of the hemp plant] are not only amply protected under this act, but they can go ahead and raise hemp just as they have always done it.).

8. Robert C. Clarke & David W. Pate, Medical Marijuana, in HEMP TODAY 303, 304 (Ed Rosenthal ed., 1994).

9. Id. at 305.

10. MEL FRANK & ED ROSENTHAL, MARIJUANA GROWER’S GUIDE 21 (rev. ed. 1990).

11. Clarke & Pate, supra note 8, at 305.

12. Id.

13. Commission Regulation 1164/89 of 28 April 1989 Laying Down Detailed Rules Concerning the Aid for Fibre Flax and Hemp, Annex C, 1989 O.J. (L 121) 10.

14. Clarke & Pate, supra note 8, at 305. The strongest marijuana on record, seized by the United States Drug Enforcement Administration in Alaska, contained 37% THC. Telephone Interview with Special Agent Ron Wilson, U.S. Drug Enforcement A gency (Nov. 22, 1994).



15. Ed Rosenthal, Foreword to HEMP TODAY, supra note 8, at xiii, xiv.

16. See Commission Regulation 1164/89, supra note 14, at 9-10 (detailing the method for quantitative determination of THC content).

17. Id. at Annex B, 9.

18. See, e.g., CONRAD, supra note 1, at 66-68; JACK HERER, HEMP & THE MARIJUANA CONSPIRACY: THE EMPEROR WEARS NO CLOTHES 11 (9th ed. 1993).

19. HERER, supra note 18, at 7.

20. RAINFOREST ACTION NETWORK, CUT WASTE, NOT TREES: HOW TO SAVE FORESTS, CUT POLLUTION AND CREATE JOBS 8 (1995).

21. FOREST SERV., U.S. DEP’T OF AGRIC., AN ANALYSIS OF THE TIMBER SITUATION IN THE UNITED STATES: 1989-2040, reprinted in RAINFOREST ACTION NETWORK, supra note 20, at 16 n.2.

22. Lester H. Dewey & Jason L. Merrill, Hemp Hurds as Papermaking Material, in U.S. DEP’T OF AGRIC., BULLETIN NO. 404, at 24 (1916).

23. Id.; S. Hennink et al., Fiber Hemp in the Ukraine, 1991, in HEMP TODAY, supra note 8, at 261, 274; Wolfgang Speilmeyer, Hemp in Australia: Tasmanian Trials, in HEMP TODAY, supra note 8, at 189,191; H.M.G. van der Werf, Fiber Hemp in Fra nce, in HEMP TODAY, supra note 8, at 213, 215; Hayo M.G. van der Werf, Paper from Dutch Hemp?, in HEMP TODAY, supra note 8, at 225, 230. The four to one ratio reported in Bulletin 404 is based on an average yield of 3.5 tons per acre of hemp fiber and hu rds. Present yields exceed five tons per acre.

24. David P. West, Fiber Wars: The Extinction of Kentucky Hemp, in HEMP TODAY, supra note 8, at 5, 14-19.

25. HEMPTECH, INDUSTRIAL HEMP 18-19 (1995).

26. Id. at 19.

27. See generally id. at 24-30.

28. Don Wirtshafter, Why Hemp Seeds?, in HEMP TODAY, supra note 8, at 169, 171.

29. UDO ERASMUS, FATS AND OILS: THE COMPLETE GUIDE TO FATS AND OILS IN HEALTH AND NUTRITION 38-39 (1986).

30. Ed Rosenthal, Hemp as Biomass?, in HEMP TODAY, supra note 8, at 139, 141.

31. Id. at 142-43; Ed Rosenthal, Introduction to Section 3: National Reports, in HEMP TODAY, supra note 8, at 185, 186-87.

32. Interview with Bob Winter, President of the Weld County Farm Bureau, in Denver, Colorado (Apr. 5,1995).

33. Colo. S.B. 132, supra note 2, 1 (would amend COLO. REV. STAT. 35-27.5-103(4)).

34. Id. (would amend COLO. REV. STAT. 35-27.5-103(6)-(7)).

35. Id. (would amend COLO. REV. STAT. 35-27.5-106(1)(b)). CBD is another chemical compound found in Cannabis resin, but it has no psychoactive properties. Rather, when smoked, CBD produces feelings of drowsiness and a headache in the user. FRANK & ROSENTHAL, supra note 10, at 36.

36. FRANK & ROSENTHAL, supra note 10, at 22, 36; West, supra note 24, at 43.

37. Colo. S.B. 132, supra note 2, 1 (would amend COLO. REV. STAT. 35-27.5-105(1)-(2)).

38. Id. (would amend COLO. REV. STAT. 35-27.5-106(1)).

39. Id. (would amend COLO. REV. STAT. 35-27.5-106(1)(b)).



40. Id.

41. HEMPTECH, supra note 25, at 4, 20.

42. Letter from Philip W. Perry, Special Agent in Charge, D.E.A. Rocky Mountain Division, to Don Ament, Chairman, Colorado State Senate Committee on Agriculture, Natural Resources and Energy 1-2 (Feb. 16, 1995) (on file with the University o f Colorado Law Review).

43. Telephone Interview with Lloyd Casey, Colorado State Senator (Feb. 17, 1995).

44. Letter from Philip W. Perry to Don Ament, supra note 42, at 3.

45. Id. at 2.

46. Id. at 1. D.E.A. headquarters confirmed that Perry s letter reflected the official position of the D.E.A. Letter from Catherine H. Shaw, Chief, D.E.A.Office of Congressional and Public Affairs, to Thomas J. Ballanco 1 (Mar. 23, 1995) (o n file with the University of Colorado Law Review).

47. Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. 802(16) (1988).

48. Pub. L. No. 75-238, ch. 553, 50 Stat. 551(1937) (repealed 1970).

49. Hearings, supra note 7, at 7, 17; see also infra note 60 and accompanying text.

50. Hearings, supra note 7, at 7, 17.

51. CONRAD, supra note 1, at 56 (quoting SACKETT & HOBBS, HEMP: A WAR CROP (1942)); Hemp Being Grown in U.S. as War Cuts off Imports, SCI. NEWSL., May 30, 1942, at 140, reprinted in HERER, supra note 18, at 159; West, supra note 24, at 36.< /a>

52. West, supra note 24, at 36.

53. HEMP FOR VICTORY (U.S. Dep’t of Agric. 1942) (film transcript in HEMP TODAY, supra note 8, app. at 413-14).

54. CONRAD, supra note 1, at 56-58; West, supranote 24, at 37.

55. Richard L. Miller, Hemp as a Crop for Missouri Farmers: Markets, Economics, Cultivation, Law 38-41 (Summer 1991) (on file with the University of Colorado Law Review); see also West, supra note 24, at 39-46 (discussing the demise of comme rcial hemp production after World War II).

56. Hemp and Marihuana: Hearings on H.R. 2348 Before the Senate Comm. on Finance, 79th Cong., 1st Sess. 1 (1945) (statement of Rep. Joseph P. O’Hara).

57. The F.B.N. was the Treasury Department agency created to enforce federal narcotics laws. It was the forerunner of the D.E.A.

58. Hemp and Marijuana, supra note 56, at 18 (statement of William S. Wood, Deputy Commissioner of the F.B.N.). During the hearings, the following exchange also took place: Sen. La Follette: Because it is perfectly clear if you read those Senate committee hearings that the Senate committee was very much concerned to be certain that in enacting this drastic piece of legislation they weren’t putting the [F.B.N.] in a position to wipe out this legitimate hemp industry. Mr. Wood: Which, of course, the [F.B.N.] doesn’t want to do. Id.

59. West, supra note 24, at 41.

60. See id. at 42.

61. Pub. L. No. 91-513, 84 Stat. 1292 (1970).

62. 21 U.S.C. 801-971 (1988 & Supp. V 1993).

63. Compare id. 802(15) with Pub. L. No. 75-238, ch. 553, 50 Stat. 551 (1937) (repealed 1970).

64. H.R. REP. NO. 1444, 91st Cong., 2d Sess. 12(1970), reprinted in 1970 U.S.C.C.A.N. 4566, 4569 (The drugs with respect to which these controls are enforced initially are those listed in the bill. These drugs are those which by law or regulation have been placed under control under existing law. (emphasis added)).



65. Id. at 18, reprinted in 1970 U.S.C.C.A.N. 4566, 4584.

66. 21 U.S.C. 801(7) (1988).

67. Single Convention on Narcotic Drugs, Mar. 30,1961, 18 U.S.T. 1408.

68. Id. at 1421, ART. 28, 2.

69. Id. 3.

70. Reorg. Plan No. 2 of 1973, 38 Fed. Reg. 15,-932 (1973), reprinted in 5 U.S.C. app. at 1563 (199-4).

71. Id.

72. See, e.g., United States v. Gagnon, 635 F.2d 766, 770 (10th Cir. 1980), cert. denied, 451 U.S. 1018 (1981); United States v. Kelly, 527 F.2d 961, 964 (9th Cir. 1976); United States v. Walton, 514F.2d 201, 203 (D.C. Cir. 1975).

73. Neither the annotations to the federal statute nor an extensive search of the Westlaw state and federal databases revealed any cases interpreting the definition of marijuana in the context of the commercial hemp industry. The only case involving commercial hemp was a suit in tort by the United States to recover damages to some of its hemp in storage in a warehouse in 1946. See United States v. City of Columbus, 209 F.2d 857 (6th Cir. 1954).

74. Hemp and Marijuana, supra note 56, at 18.

75. For an explanation of the ultra vires doctrine in the context of administrative law, see ARTHUR E. BONFIELD & MICHAEL ASIMOW, STATE AND FEDERAL ADMINISTRATIVE LAW 422-31 (1989).

76. See supra text accompanying note 59.

77. Alcaraz v. Block, 746 F.2d 593, 613 (9th Cir. 1984) (substantive rules are rules which create law and are usually implementary to an existing law)

78. 5 U.S.C. 553 (1994).

79. An exhaustive search of the Federal Register indicates that the D.E.A. never proposed an amendment to the federal definition of marijuana to include industrial hemp.

80. Hearings, supra note 7, at 17.

81. Exec. Order No. 12,919, 59 Fed. Reg. 29,525 (1994).

82. West, supra note 24, at 43-44.

83. HEMPTECH, supra note 25, at 31-38.

84. Id.

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