Moves are afoot in California and North Dakota to win approval of industrial hemp production at the state level, but the ultimate goal is removing the federal government as an obstacle to domestic cultivation of the valuable and versatile plant. Under current US law, hemp products are legal and hemp may be imported to be used in products produced here, but the plant itself cannot legally be grown in the US.
Hemp is classified as the same species as marijuana, Cannabis sativa L., but is a different cultivar and possesses different characteristics. Most important legally, hemp is distinguished from marijuana by its very low levels of THC, the primary psychoactive component in marijuana. Hemp plants typically contain THC levels under 1%. In the Dakotas, feral hemp, or "ditch weed," descended from the "victory hemp" of World War II grows everywhere, and, as local farm boy wisdom puts it: "You could smoke a joint the size of a telephone pole, and all you'd get is a sore throat and a headache."
Industrial hemp proponents point not only to the downright silliness of classifying hemp as a controlled substance, but also to its virtues as an agricultural crop and industrial product. The plant's fibers can be used to make everything from paper to automobile panels, while its seeds and oils are in high demand in the ever-growing hemp food industry. Next door to North Dakota, the Canadian hemp crop has expanded to 40,000 acres in the past six years, and American farmers want some of the action.
"With our proximity to the Canadian border, we can see hemp fields from here," said North Dakota Agriculture Department plant industries program manager Jeff Olson, whose boss, Agriculture Commissioner Roger Johnson is leading the push to get regulations in place. "We see it as another agronomic tool for farmers. There is plenty of economic potential there, and it is something farmers could consider growing instead of wheat, barley, or corn," he told DRCNet. "We passed our legislation back in 1999 after a groundswell from farmers led Assistant Majority Leader David Monson (R-Osnabrook) to sponsor it. Now it's working its way through the process."
A hearing on the regulations was set for Thursday, Olson said Wednesday afternoon, and it looked as if it would be favorable. The hemp industry would be well-represented, Olson said, while no opponents have signed up to speak. "We have a representative from Vote Hemp, and there will be a Canadian researcher, among quite a number we're expecting," he said. In written testimony, there was only one objection to the notion of industrial hemp, "from law enforcement out of South Dakota," he explained.
The regulations being discussed Thursday would allow farmers to grow hemp under the law passed in 1999. It won't be as easy as planting a crop of wheat or corn, though. "Under our law, farmers have to pass a criminal background check and apply for a license to grow. They will have to pay a per acre fee. There are requirements on how it's planted; it can't be surrounded by other crops and hidden from view," said Olson. "They will be inspected periodically throughout the summer, and if we grant them a permit, they will then have to apply to the DEA for permission," he told DRCNet.
North Dakota Ag Commissioner Johnson went to Washington in February along with ag commissioners from Massachusetts, West Virginia, and Wisconsin to meet with the DEA to seek ways of allowing industrial hemp production. In a statement issued at the time, Johnson said DEA officials were "cordial," but they warned legalizing hemp would be "extremely complicated" under existing law. "DEA has never responded to our earlier inquiries," Johnson said, "but today, we were able to present our case and learn from them what may be required in terms of regulations and safeguards."
Good luck, if the DEA's past (and present) position is any indication. The agency did not return DRCNet calls for comment, but DEA spokeswoman Rogene Waite reiterated the agency's longstanding position in an interview with the Associated Press last month, where she stated flatly that the federal drug laws do not distinguish between hemp and marijuana because both contain THC.
Still, Olson had an optimistic view for the record. "We're hoping that DEA will look at industrial hemp separately form marijuana. We don't think industrial hemp meets the definition of a drug, and our goal is to have the DEA determine that yes, hemp and marijuana are two separate plants to be regulated separately."
Meanwhile, in Sacramento, the California Senate Public Safety Committee held a hearing Tuesday on that state's hemp bill, AB 1147. Sponsored by Assemblyman Mark Leno (D-San Francisco), the bill "would require industrial hemp to be cultivated only from seeds imported in accordance with federal law or from seeds grown in California, as specified" and would not authorize "the transportation or sale across state borders of seed or any variety of Cannabis sativa L. that is capable of germination."
The bill sets an upper permissible THC limit of 0.3% and requires laboratory tests of the crop to verify it. But it is the language about seeds that is crucial for strategic reasons.
"We're hoping that carefully crafted state regulations that explicitly prevent the parts of the plant controlled by the DEA -- the seeds and the flowers -- from leaving the state will mean the DEA has no power to regulate inside the state as long as farmers are following the state regulations, but that will probably require that we file a lawsuit," said Alexis Baden-Mayer, director of governmental relations for Vote Hemp.
The California bill does just that. "It was drafted specifically with the idea of limiting the crop to the production of legal substances and not letting viable seeds leave the state," said Baden-Mayer. "If California started to grow hemp, viable seeds would not cross the state line." It would be inconvenient for the industry, but "would be worth it for states to not engage in interstate commerce in hemp seed to avoid DEA control," she told DRCNet.
Although the Supreme Court a year ago rejected a similar challenge to the federal government's use of the interstate commerce clause to extend federal jurisdiction to medical marijuana, this would be different, Baden-Mayer argued. "Unlike the medical marijuana case, all the commodities associated with industrial hemp are legal. The only thing that's not legal right now is the plant in the ground."
But the California bill must pass before it can provide the basis for a legal challenge to DEA control over hemp, and North Dakota must get its regulations in order before farmers there can start the permitting process. The California bill faces a committee vote and a Senate floor vote before passing -- neither of which is assured at this point. And the North Dakota Ag Commission's Olson said given the process, farmers would be lucky to be permitted in time for the 2007 crop, and 2008 is more likely.
It can't happen soon enough for US agriculture. "American farmers are tired of looking around the world and seeing other farmers making healthy profits growing hemp for export to the US. They want change," said Vote Hemp President Eric Steenstra.
Farmers aren't the only ones looking for a domestic hemp industry. Increases in US hemp food production -- sales are up 50% a year, said Vote Hemp -- are increasing demand for hemp seed and may cause hemp seed shortages to develop. The natural fiber composite industry, which has largely replaced fiberglass in vehicle interiors, is also hungry for hemp made in America. FlexForm, an Indiana manufacturer who uses 250,000 pounds of hemp fiber a year, is eager to expand its use of the fibers. "Hemp fiber possesses physical properties beneficial to our natural fiber-based composites," FlexForm said, adding that it would "gladly expand domestic purchases."
It has been 50 years since the last legal industrial hemp crop was planted in Wisconsin. It is not quite back yet, but industrial hemp in the US is poised to make a comeback -- if only the federal government will get out of the way or can be adjudicated out of the way.