by Seshata on 19/10/2012 | Legal & Politics

Legalizing U.S. hemp farming – the battle continues

Political support for full legalization of hemp farming is growing on both sides of the fence, as it becomes ever clearer that the USA's insistence on remaining the only industrialized country to prohibit its cultivation is short-sighted and potentially crippling.

Fiber hemp, tightly planted to reduce branching (© Geograph UK)

Political support for full legalization of hemp farming is growing on both sides of the fence, as it becomes ever clearer that the USA’s insistence on remaining the only industrialized country to prohibit its cultivation is short-sighted and potentially crippling.

Despite the existence of nine U.S. states in which the production of industrial hemp is legal, the DEA continues to block all attempts at hemp farming throughout the nation. However, a new piece of legislation brought to the Senate last month may bring fresh hope to the cause. Introduced by Ron Wyden (D-OR), and co-sponsored by Senators Rand Paul (R-KY), Bernie Sanders (I-VT), and Jeff Merkley (D-OR), the bipartisan  Senate Bill 3501 was brought to the National Congress on August 2nd 2012. It proposes to amend the Controlled Substances Act (CSA) of 1970 to specify the difference between marijuana and hemp, and reiterate the fact that hemp is not a psychoactive substance. It is the companion bill to  H.R. 1831, the House bill that has been languishing at the referral stage since May 2011.

Hemp farming could replace tobacco crop in Kentucky

It is perhaps in Kentucky that the battle is being most fiercely contested: public support is solid, and various commercial and agricultural organizations have vested interests in making hemp farming legal. At the Kentucky State Fair in August 2012, Rand Paul and State Agricultural Commissioner Jamie Corner together  promoted the legalization campaign. Corner stated his belief that legalization of hemp farming could directly lead to the creation of up to 25,000 jobs in Kentucky, based on studies performed in the UK in 1994, after the ban on growing industrial hemp was lifted there. 4th Congressional District candidates Republican Thomas Massie and Democrat Bill Adkins are  both pledging support for the cause in anticipation of November’s election, with the respective support of the Kentucky Hemp Initiative and the Kentucky Hemp Coalition. Interestingly, both candidates cite the diminishing importance of tobacco as a cash crop as contributing to the current need for a new commercial activity with the potential to revive Kentucky’s flagging rural economy.

Public support of licensed hemp farming

3rd District Senator Joey Pendleton (D-Hopkinsville) has also repeatedly introduced legislation to the Kentucky State Senate that would, if passed, allow the state to issue hemp farming licenses. For the last six years, these bills have died at the initial voting stage, but Pendleton is increasingly confident that the legislation could be passed during the next session, if public support continues to rise so decisively. Furthermore, he believes that the more states legislating in favor of licensed hemp production, the higher the likelihood of Congress being forced to consider lifting the federal ban outright.

Numerous states support legalization

Hemp cultivated for seed, almost ready to harvest (© Geograph UK)

Including Kentucky, there are currently  nine U.S. states that allow licensed hemp farming, yet all are prevented from issuing these licenses through the conflict with federal law. At least a dozen more state legislatures have passed laws allowing the study of the plant, and several have conducted encouraging feasibility studies. In North Dakota, the state actually issued licenses to two would-be hemp farmers in 2007, who are as yet unable to begin production despite several attempts to procure a ‘declaratory judgment’ from the District Court stating the legality of their operation. In Montana, the  very first state-issued license-holder (in 2009) stated her intention to commence operations without attempting to procure a DEA permit. The outcome of this bold move is not yet clear, but the DEA’s response will be crucial in determining the extent to which they are prepared to override state law to enforce federal law.

 “Congress has to change the law”

A recent statement issued by DEA spokesperson Barbara Carreno, that “in the executive branch, we enforce (the CSA) as it’s written, and Congress has to change the law”, would seem to imply that the DEA has no inherent bias against the concept of legalization. However, this statement stands in contrast to previous claims that permitting hemp farming ‘ sends the wrong message‘ to the American public and leads to opportunistic parties capitalizing on the increased leniency (or simply ignorance) of local law enforcement agents, in order to grow marijuana. The easily-refuted argument that marijuana growers would seek to conceal high-potency crops within hemp plantations, thereby risking cross-pollination and degradation of quality, implies some level of obfuscation within the DEA machine. Many believe this is more attributable to bias than to genuine ignorance of the facts.

Interpreting the Controlled Substances Act legislation of marijuana

The legal basis for prohibition of hemp farming rests on the following clause in the  CSA: “The term marihuana means 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 … 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.”

This ambiguously-worded statement is interpreted by many to mean that industrial hemp is in fact legal according to the CSA, but the DEA continues to refute this interpretation, choosing instead to follow the principle that, as there is no legal distinction between psychoactive and non-psychoactive cultivars, all forms of marijuana cultivation remain illegal.

However, if the CSA was amended to state that non-psychoactive cultivars do not come under the classification of marijuana, it would theoretically be unnecessary to seek a DEA permit to cultivate hemp. The likelihood of S. 3501 being passed is low, but the speed at which the movement is gaining momentum gives credence to the increasingly common belief that industrial hemp farming will be fully legal in the USA in less than a decade.

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