The Colorado Hemp Production Act of 1995:
Farms and forests without marijuana

Thomas J. Ballanco
"Make the most of the hemp seed, sow it everywhere."
George Washington, 1794

          Why does America continue to discourage hemp research and cultivation?  This review clearly shows that the United States federal government never intended to interfere with or prevent industrial hemp cultivation.  This authority has been usurped by the Drug Enforcement Administration under their mandate to control drug Cannabis.  A clear perspective of how we have arrived at this situation will permit the examination of the situation and provide a basis for change in the future.  The importance of allowing hemp research and cultivation in the United States, the West’s largest market for hemp products, should not be under estimated.  The Act has been rewritten and will be reintroduced in Colorado in early 1996 by Senator Lloyd Casey.  -JIHA Editors

          Colorado became the first state in the United States of America to take legislative action aimed at re-establishing a commercial hemp industry, when Colorado State Senator Lloyd Casey introduced the Colorado Hemp Production Act of 1995 ("Colorado Act")2 on January 25, 1995.  Earlier, in November, 1994, Kentucky Governor Brereton 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 months 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 ("1937 Act").7  While hemp and marijuana are both products derived from the same plant species, Cannabis sativa L., they are produced independently by different Cannabis strains.8  "Hemp" generally refers to the high fiber Cannabis varieties that have extremely low tetrahydrocannabinol ("THC") content.9  THC is a chemical compound that is found in the resin secreted by the plant.10  It is this ingredient that gives marijuana its psychoactive properties.11  "Marijuana" refers to the leaves and flowers of certain Cannabis species containing high THC concentrations.12  High fiber hemp strains are usually incapable of producing marijuana and high-THC marijuana strains produce only relatively small amounts of low quality fiber.13
          In order for Cannabis plants to be classified as hemp under the European Union standards, which have been proposed in Kentucky and Colorado, they must contain no more than 0.3% THC.14  Marijuana on the other hand, usually ranges from 3% to 12% THC.15  THC was only identified as the active ingredient in marijuana in 1964, so classification based on psychoactive content was not possible when Cannabis was first regulated in the 1930s.16  In 1995, however, a simple chemical analysis can accurately differentiate between Cannabis-hemp and Cannabis-marijuana.17  The European Union certifies twelve Cannabis seed varieties that produce only high-fiber, low-THC hemp.18

Benefits of hemp production
          Hemp is touted by activists and environmentalists as a possible solution to deforestation.19  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 paper pulp.20  According to industry estimates, up to 70% of the annual commercial U.S. timber harvest is chipped for use in industrial fiber products, such as particle board, and as pulp for paper mills.21  Less than 30% of the harvest is used as raw lumber for planks and beams.22  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.23  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.24  Additionally, unlike kenaf and other alternative paper crops, hemp can grow in a variety of climates.25  Farmers claim that it has no known insect predators nor plant competition, and thus can grow without pesticide or herbicide application.26  It has water and fertilizer requirements similar to corn and wheat.27
          In addition to the long bast fiber, hemp produces short fiber hurds from the stalk pith, as well as a valuable seed.  The hurds are used to make lower quality paper and a variety of other cellulose-based products ranging from insulation to degradable plastics.28  Hemp seeds are a rich source of oil and, like soy beans, are very high in protein.29  Hemp seed oil contains the two essential fatty acids which some researchers claim strengthen the human immune system.30  Hemp hurds can also be pyrolyzed into methanol or the seed oil burned like diesel fuel.31  While some of these applications are yet to be fully established, strong plentiful textile fibers and edible seeds are presently hemp’s most attractive economic qualities.32  Industrial hemp’s economic potential interests many Colorado farmers who are eager to begin production.33

The Colorado Hemp Production Act
          The Colorado Act attempts to clarify the language in the 1937 Act, by defining "Hemp" as "all parts of the plant Cannabis sativa containing less than 1% THC."34  It amends the definition of "Marijuana" and "Marijuana Products" to include only those Cannabis plants that contain more than 1% THC.35  As a safety provision, it also includes a requirement that hemp plants contain cannabidol ("CBD") in concentrations equal to or greater than the THC concentration.36  The high CBD content of such plants tends to counteract the psychoactive effects associated with any THC present.37  The Colorado Act requires the Commissioner of the State Department of Agriculture ("Commissioner") to license all hemp farmers and handlers in the state.38  The Commissioner must also certify authorized sources of industrial hemp seed.39  Farmers may only plant certified hemp cultivars.  Under the Colorado Act, hemp fields must be inspected at least once during the growth cycle and samples taken for THC analysis.40  Crops that exceed the THC limits must be destroyed at the farmer’s expense.  The Colorado Act incorporates a 0.4% buffer between hemp and marijuana, requiring criminal prosecution only when crops test greater than 1.4% THC.41  Few commercial hemp strains produce THC concentrations greater than 1%.42

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.43  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 S.B. 95-132 caused the Committee to postpone the measure indefinitely.44  The letter characterized the Bill as a subterfuge, charging that S.B. 95-132 was "no more than a shallow ruse being advanced by those who seek to legalize marijuana."45  It expressed concern that, if passed, S.B. 95-132, "would add the force of a Colorado statute to the perception that marijuana is ‘OK’."46
          The letter also pointed out that in the D.E.A.’s opinion, the Colorado Act would conflict with standing federal law.47  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.48

          This statutory language is identical to that in the 1937 Act.49  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.50  In 1937 and again in 1945, Congress made clear that it was not delegating to the Federal Bureau of Narcotics ("F.B.N.")51 the authority to destroy the legitimate commercial hemp industry.52
          After the 1937 Act began to impede the domestic hemp industry in the late 1930s, the United States Army and Navy, large consumers of fiber for rope and canvas, relied on imports from the Philippines to meet their needs.53  When the Philippines fell to the Japanese in early 1942, the United States was left without a source of fiber.54  The government responded by launching the "Hemp for Victory" campaign that encouraged American farmers to grow hemp.55  Between 1942 and 1945, without any change in the federal law, the United States cultivated over four hundred thousand acres of hemp.56
          After the end of World War II, the commercial hemp industry began to decline, due, in part, to the F.B.N. registration requirements.57  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.58  During testimony before the Senate Finance Committee, William S. Wood, Deputy Commissioner of the F.B.N., commenting on the definition of "marihuana" guaranteed that it would not have a negative impact on the commercial hemp industry.59  In fact, the Rens Hemp Company raised industrial hemp in Wisconsin under the federal definition of "marihuana" until 1957, when the owner retired and moved to Arizona.60  By 1958, there were no longer any commercial hemp producers in the United States.61
          In 1970, Congress repealed the 1937 Act62 and replaced it with the current federal narcotics law, the Comprehensive Drug Abuse Prevention and Control Act of 1970 ("1970 Act").63  During passage of the 1970 Act, Congress did not amend the federal statutory definition of "marihuana,"64 nor did it express such an intent.65  The House commission explicitly recommended exempting "the emergency production of hemp" from prohibition.66  The 1970 Act expresses an intent67 to bring the United States into compliance with the United Nations Single Convention on Narcotic Drugs of 1961.68  The Convention recognizes that there is a difference between Cannabis grown for its resin (marijuana) and Cannabis that is grown "exclusively for industrial purposes."69  The Convention exempts industrial Cannabis from coverage and only requires the parties to "adopt such measures as may be necessary to prevent the misuse of, and all traffic in, the leaves of the Cannabis plant."70  The Colorado Act attempts to do exactly that.
          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.
71  The Reorganization Plan mentions narcotics and "marihuana" but neither limits nor expands the D.E.A.’s authority beyond that of the F.B.N.72  This transfer was the last federal executive or legislative action that could have affected the federal statutory definition of "marihuana."  Moreover, when attempting to discern the meaning of the federal definition of "marihuana," courts have consistently gone back to the intent of the 1937 Congress.73  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 "marihuana" to include the legitimate commercial hemp industry.74
          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."75  Such an intent seems to exceed that agency’s delegated authority under the ultra vires doctrine.76  If Congress did somehow delegate the authority to include commercial hemp crops in the definition of "marihuana" to the D.E.A., then that agency’s 1995 position represents a reversal of policy since 1957 (when the F.B.N. knew that Willard Rens was growing hemp in Wisconsin)77 and, in effect, creates law.78  This reversal should impose the notice and comment requirements of section 553 of the Administrative Procedures Act,79 with which the D.E.A. did not comply.80  In short, there does not seem to be any federal law or authority that 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."81

          Other federal regulations 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.82  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."83  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 may contribute to our future economic security.
          As of 1994, the governments of Canada, Australia, Great Britain, Austria and the Netherlands all permitted their farmers to grow hemp crops for research and limited industrial applications.
84  In 1995, South Africa and Finland grew for the first time in decades and Germany declared hemp legal to grow for the Spring 1996 season.  France, Spain, Poland, Romania, Hungary, Slovenia, Ukraine, Japan, Korea, China and Russia, among others, continue to produce industrial hemp as they have for hundreds, and in some cases, thousands of years.85
          Cannabis-hemp strains are distinct from psychoactive Cannabis-marijuana strains and this distinction is identifiable and predictable.  There is a cognitive difference, a phytochemical difference and a legal difference.  If the federal government adopted the Colorado Act's new definition, it would clarify the existing law, thus allowing for the strict regulation of marijuana while keeping the D.E.A. from continuing the inadvertent suppression of this legitimate industry through its misinterpretation of federal law.

Tom Ballanco can be reached at:
2626 Baseline Rd. 272
Boulder, CO 80303

          Reprinted with permission of the University of Colorado Law Review from Vol. 66 (1995).

1  Note to Mt. Vernon's gardener, reported in CHRIS CONRAD, HEMP: LIFELINE TO THE FUTURE 305 (1993).

2  S.B. 95-132, 60th Leg., 1995 Colorado.

3  "Kentucky to Study Hemp," Lexington Register, Nov. 25, 1994 A1.

4  Telephone interview with com-mission member Jake Graves on January 25, 1995.

5  Oregon, California and Hawaii are considering legislation similar to S.B. 95-132, while the state Departments of Agriculture in Wisconsin, Minnesota and Georgia are negotiating with the U.S. Drug Enforcement Administration.  Telephone interview with David Martin and Laura Kriho, Colorado Hemp Initiative Project, (Apr. 3, 1995).

6  "Clothing Industry Going to Pot," CHICAGO TRIBUNE, Jan. 24, 1995 A12.

7  Marijuana Tax Act, 26 U.S.C. 2590 (1937).  See also, Taxation of Marihuana: Hearing on H.R. 6906 Before the Subcomm. of the Senate Comm. on Finance, 75th Cong., 1st Sess., 7, 17 (1937) (statement of Clinton M. Hester, Assistant General Counsel, Treasury Dept.) ("The production and sale of hemp and its products for industrial purposes will not be adversely affected by this bill.") and (statement of Harry J. Anslinger, Commissioner, Federal Bureau of Narcotics) (Sen. Brown: "What dangers, if any, does this bill have for the persons engaged in the legitimate uses of the hemp plant?"  Mr. Anslinger: "I would say they are not only amply protected under this act, but they can go ahead and raise hemp just as they have always done it.").

8  Ed Rosenthal, Hemp Today 305 (1994).

9  Id. at 304

10  Mel Frank & Ed Rosenthal, Marijuana Grower's Guide 21 (1990)

11  Id.

12  Rosenthal, supra note 8.

13  Id.

14  Commission Regulation 1164/89 of 28 April 1989 laying down detailed rules concerning the aid for fibre flax and hemp, Annex C(9), 1989 O.J. (L121), 32.

15  Rosenthal, supra note 8 at 21-22.  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.D.E.A. on Nov. 22, 1994.).

16  Rosenthal, supra note 8, at xiv.

17  Commission Regulation, supra note 14, at Annex C.

18  Id. at Annex B.

19  Jack Herer, The Emperor Wears No Clothes, (1985) and Chris Conrad, Hemp: Lifeline to the Future, (1992).

20  Herer, supra note 19, at 2,7.

21  Organization for Economic Cooperation and Development, The State of the Environment, (1991) p 117.

22  Id.

23  Lester Dewey, "Hemp" in Yearbook of the U.S. Dept. of Agriculture (1913).

24  Rosenthal, supra note 8.

25  Id, at 41-42.

26  Hemptech, Industrial Hemp (1995), 18-19.

27  Id. at 19.

28  Id. at 24-30.

29  Rosenthal, supra note 8, at 171.

30  Lynn Osburn, Hempseed Nutrition, (1990).

31  Rosenthal, supra note 8, at 139, 141.

32  Id. at 143.

33  Interview with Bob Winter, President, Weld County Farm Bureau (Apr. 5, 1995).

34  S.B. 95-132, supra note 2, at 103(4).

35  Id. at 103 (6-7).

36  Id. at 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.

37  Frank & Rosenthal, supra note 10, at 22, 36; Rosenthal, supra note 8, at 43.

38  S.B. 95-132, supra note 2, at 105.

39  Id.

40  Id. at 106(1).

41  Id. at 106(1)(b).

42  Hemptech, supra note 26, at 4, 20, 47.

43  Letter from Philip W. Perry, Special Agent in Charge, U.S.D.E.A. Rocky Mountain Division Field Headquarters, to Members, Colorado State Senate Committee on Agriculture, Natural Resources and Energy 1-2 (Feb. 16, 1995) (on file with the University of Colorado Law Review).

44  Telephone interview with Lloyd Casey, Colorado State Senator, (Feb. 17, 1995).

45  Perry, supra note 43, at 3.

46  Id. at 2.

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

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

49  26 U.S.C. 2590, supra note 7, at 1(b).

50  Hearings, supra note 7 and infra notes 58 and 59.

51  Treasury Department agency created to enforce federal narcotics laws, forerunner of the D.E.A.

52  Id.

53  Hemp Being Grown in U.S. as War Cuts Off Imports, SCI. NEWSL., May 30, 1942 at 140.

54  Id.

55  HEMP FOR VICTORY (U.S. Dept. of Agriculture 1942).

56  CONRAD, supra note 19, at 56-58; ROSENTHAL, supra note 8 at 37.

57  Richard L. Miller, Hemp as a Crop for Missouri Farmers: Report to the Agricultural Task Force, Missouri House of Representatives 38-41 (Summer 1991) (on file with the University of Colorado Law Review).  See also, supra note 8, at 39-46 (discussion about the demise of commercial hemp production after World War II).

58  Hemp and Marijuana: Hearings on H.R. 2348 Before the Senate Comm. on Finance, 79th Cong., 1st Sess. 1 (1945) (statement of Hon. Joseph P. O’Hara, Rep., 2d Cong. Dist. of Minn.).

59  Id., at 18(statement of William S. Wood, Deputy Commissioner of the F.B.N.) (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 Bureau (F.B.N.) in a position to wipe out this legitimate hemp industry."  Mr. Wood: "Which, of course, the Bureau doesn’t want to do.")

60  ROSENTHAL, supra note 8, at 41-42.

61  Id.

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

63  21 U.S.C. 801 et. seq. (1970).

64  Id. at 802(16), supra note 49.

65  H.R. Rep. No. 91-1444, 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).

66  Id. at 4584.

67  21 U.S.C. 801(7) (1970).

68  Single Convention on Narcotic Drugs, March 30, 1961, 18 U.S.T. 1408.

69  Id. at 1421 Art. 28, 2.

70  Id. at 3.

71  Reorg. Plan No. 2 of 1973, 38 F.R. 15,932 (1973), reprinted in 5 U.S.C. app. at 141 (1995).

72  Id.

73  United States v. Gagnon, 635 F.2d 766, (10th Cir. 1980); United States v. Kelly, 527 F.2d 961, (9th Cir. 1976); United States v. Walton, 514 F.2d 201, (D.C. Cir. 1975).

74  21 U.S.C.A. 802 (Law. Co-op. 1984 & Supp. 1994) (Interpretative Notes and Decisions)  Neither the annotations nor an extensive search of the Westlaw state and federal databases revealed any cases interpreting the definition of "marihuana" 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.  United States v. City of Columbus, 209 F.2d 857 (1954).

75  Hearings, supra note 59.

76  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 423 (1989).

77  See supra text accompanying note 60.

78  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, incrementally imposing general, estrastatutory obligations").

79  Administrative Procedures Act, 5 U.S.C. 553 (1994).

80  An exhaustive search of the F.R. indicates that the D.E.A. never proposed an amendment to the federal definition of "marihuana" to include industrial hemp.

81  Hearings, supra note 7.

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

83  Rosenthal, supra note 8, at 44.

84  Hemptech, supra note 26, at 31-38.

85  Id.