Drug Policy

Will the Courts Tell the DEA the Difference Between Hemp and Pot?


Two North Dakota farmers, one of them a state legislator, filed a federal lawsuit this week asking for a judgment declaring that the federal Controlled Substances Act (CSA) does not prohibit their cultivation of industrial hemp. In 2005 North Dakota legalized hemp farming, but the necessary state licenses initially required approval from the U.S. Drug Enforcement Administration. This year, after it became clear that the DEA would not give its blessing to hemp cultivation, the state legislature amended the law to waive that requirement. But now would-be hemp farmers are worried that if they proceed with their plans they could face federal prosecution.

The DEA refuses to distinguish between nonpsychoactive hemp, which by definition contains less than 0.3 percent THC, and marijuana, which has a THC concentration at least 10 times as high. Hemp is legally grown in many countries around the world where marijuana is prohibited, and products made from hemp fiber, seed, and oil are legally sold in the United States. But because of the DEA's intransigence, the raw material for these products cannot be grown in this country without fear of arrest.

In their lawsuit, state Rep. David Monson (R-Osnabrook) and Wayne Hauge, who has a farm in Ray, North Dakota, argue that the DEA is misreading the CSA, which specifically excludes the stalks, oil, and sterilized seeds of cannabis plants from the definition of marijuana. This definition, carried over the the Marihuana Tax Act of 1937, reflects Congress' intent to allow the continued cultivation of hemp. Monson and Hauge argue that it's unreasonable to claim that Congress meant to ban industrial hemp:

The CSA does not prohibit the Plaintiffs' planned cultivation of industrial hemp on their farms in North Dakota because Congress's own findings in the CSA, read together with the legislative history of the Act, suggest that Congress did not intend to preclude a state regulated regime in which only the non-regulated parts of the plant would enter commerce at all and there is absolutely no risk of diversion of drug marijuana by reason of the cultivation of the hemp plants themselves, which are useless as drug marijuana and the mere cultivation of which cannot in any way affect commerce, whether intrastate or interstate, in drug marijuana.

The CSA does not prohibit the Plaintiffs' planned cultivation of industrial hemp on their farms in North Dakota because Congress could not, in the absence of any risk of diversion, logically have intended to allow someone in Canada to grow Cannabis and export the non-regulated parts of the plant into North Dakota but not allow someone in North Dakota to grow a form of Cannabis useless as drug marijuana and sell or distribute the same non-regulated parts of the plant in the same state, North Dakota. And since Congress would not have logically intended to prohibit such sale or distribution, it could not logically have intended to prohibit intrastate commerce in viable hemp planting seed useless for the cultivation of drug marijuana and useful only for cultivation of industrial hemp for processing the non-regulated parts of the plant for commercial use.

The DEA's interpretation of the CSA vis-à-vis hemp already has been rejected by the U.S. Court of Appeals for the 9th Circuit, which blocked the agency's attempt to ban edible hemp products. In this case, however, there is the added complication that the hemp plants raised by U.S. farmers would include leaves and flowers, albeit with so little THC that they're worthless for getting high. Monson and Hauge emphasize that the leaves and flowers would stay on the farm. There is also the issue of the nonsterilized seeds that would be necessary to grow hemp, which they address by saying that the seeds cannot be used to grow psychoactive cannabis and would in any case stay in North Dakota, where their use would be regulated by the state.

But here is my favorite part of the suit: Even if Congress did mean to ban the sort of hemp farming authorized by North Dakota law, Monson and Hauge suggest, it does not have the constitutional authority to do so:

The CSA cannot be interpreted to prohibit the Plaintiffs' planned cultivation of industrial hemp on their farms in North Dakota because regulation of such cultivation, in the absence of any affect on commerce of any kind in the commodities which Congress has chosen to regulate under the CSA, would exceed congressional power under the Commerce Clause of the U.S. Constitution. Although Congress could regulate interstate commerce, and thus intrastate cultivation and production, of industrial hemp fiber and seed products, Congress has chosen not to do so. By applying the CSA to the Plaintiffs' proposed cultivation of industrial hemp, DEA would be extending its authority under the CSA into areas of interstate commerce Congress has expressly chosen not to regulate under the CSA. In-state industrial hemp plants themselves are in no way fungible with drug marijuana, whether moving in intrastate or interstate commerce, as no part of the industrial hemp plant has utility as a drug. The regulated parts of industrial hemp plants could not possibly be diverted into and "swell" or increase the supply of drug marijuana. Therefore, there is no potential for any effect on interstate commerce in drug marijuana. Intrastate cultivation of industrial hemp thus has no connection or effect whatsoever on the interstate commerce in drug marijuana that Congress has determined to regulate.

For those of us who were wondering, in the wake of the Supreme Court's determination that a pot plant on a California patient's windowsill is "interstate commerce," whether anything could be considered beyond congressional authority under the Commerce Clause, this sounds like a plausible prospect. Since industrial hemp is not a drug, it is even further removed from the interstate cannabis market than medical marijuana is. But note that Monson and Hauge's argument seems to hinge on the fact that Congress has not chosen to regulate the hemp market. If it did decide to do so, presumably it could control (or forbid) production in North Dakota, just as it does with other agricultural commodities.

[via NORML]

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  1. This is what makes my head explode. The opposition to industrial hemp is just, so… so… IT’S FUCKING RETARDED is what it is. More than that it exposes the total moral bankruptcy of the WOD.

    But hey, it’s for the children so rah rah

  2. Given law enforcement’s notorious track record for confusing a myriad of plants for marijuana, including mullberry bushes, someone has to teach them the difference.

    The poor things will never figure it out on their own.

  3. “The opposition to industrial hemp is just, so… so… IT’S FUCKING RETARDED is what it is”

    Yeah, it would be like banning the growing of grapes during prohibition because it just might be used to make illegal wine.

  4. Cesar,
    It’s even more stupid than that. It would be like banning all vines, even if the grapes they produced were hard and bitter and could not be used to make wine.

  5. It’s actually better than that. Industrial hemp, if these mental midgets would only figger it out, is a NIGHTMARE for growers of psychoactive pot due to how these plants reproduce. Do you want sinsemilla that’s worth as much as or more than gold, or do you want crap that’s filled with seeds? The policy they support makes the sinse-bud option a lot easier to grow. We live amongst true geniuses..

  6. Well, once you start banning stuff that grows out of the ground it’s pretty tough to set any kind of limits. Like the amusing way in which accidentally picking a Panaeolus Subbalteatus mushroom instead of a lookalike Paneolus Foenisecii from your front lawn can get you a life sentence in prison for transportation of Psilocin and Psilocybin. Great job, DEA!

  7. Ah! But it does effect interstate commerce because they will use fertilizers and land and labor and machinery all of which otherwise would be put to other uses thus effecting interstate commerce!

    See, that’s how the “interpretation” of the commerce clause “works”.

    Like someone posted before here on this blog, under the current “interpretation” even your THOUGHTS effect interstate commerce because neuron activity requires (among other things) glucose thus effecting sugar markets.

  8. If the DEA were geniuses they would spray ditch weed pollen, not paraquat over marijuana fields.
    No environmental damage and the dope grower’s hard work would be for naught.

  9. Banning industrial hemp is like putting someone’s name on the TSA no-fly list because it’s similar to the name of someone else who probably isn’t a terrorist either.

    Your government at work.

  10. If the DEA were geniuses

    Ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha.

  11. LarryA,
    Well put. I Wish I had said that.

  12. All this pales in importance to getting the commerce clause sensibly reinterpreted.

  13. I think DEA’s interpret’n of the CSA re hemp farming is correct. Congress intended DEA to license the farming of hemp just as it was licensed during World War 2. What I don’t think Congress anticipated was DEA’s using its discretion to condition the licensing of hemp growing as if it were production of an experimental drug, which is how DEA is treating it.

  14. “Will the Courts Tell the DEA the Difference Between Hemp and Pot”

    Nah, they’ll just let the DEA get a headache and figure it out by themselves.

    At least, that’s what my friend told me.

  15. It is critical that the ban stays in effect in order to send the right message to protect children.

  16. The fact that *drug marijuana* is the biggest cash crop in this country should make the question of industrial hemp a moot one, no? Then again, from where I’m sitting, cannabis prohibition seems more and more like an agricultural subsidy all the time. Of course, I do live in a town where people grow weed instead of going on foodstamps…

  17. Ron Paul has introduced a bill in Congress to allow cultivation of Industrial Hemp. The bill is even mentioned in the current issue of the Economist, which has an article on hemp for industry.

  18. Follow the money trail of those who would profit by the stopping of industrial hemp. It is likely you will find Big Business *& their corporate lobbyists in hyper-greed and power mode to not share profits. The greed and power of Big Business shows us that most of America, tribal or not, is being dominated by a very non-democratic and “people be damed” power group. There is no logic other than greed. Intelligent people-friendly laws are not lokely to succeed until We The People can pass our own laws on a large scale. I love America, but paid off white old male stooges in Congress don’t seem to give a care about America past their own wallets. WE THE PEOPLE are going to have to use the power of referendum to pass our own laws, so American families can live their lives in health and dignity.

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