Most of the world—including now a majority of these united
states—understands industrial hemp to be a valuable plant that can be grown
sustainably for oil, seed and fiber and is useful in the manufacture of food, body care, textiles, paper and construction and other products. (See Hemp Industries Association and North American Industrial Hemp Council
websites for more information.)
Unfortunately, the U.S. Drug Enforcement Administration
(DEA) irrationally conflates industrial hemp with marijuana. The scientific
literatures of biology, chemistry and medicine all agree: industrial hemp is
not marijuana. The evidence is compelling and it’s time to compel DEA to
heed such evidence.
Industrial Industrial hemp and marijuana are distinguished by widely
different THC:CBD ratios. Source: Hillig, Karl W. and Paul G. Mahlberg. 2004 A
Chemotaxonomic Analysis of Cannabinoid Variation in Cannabis (Cannabaceae).
American Journal of Botany 91(6): 966-975.
The THC and CBD levels in 157 accessions of cannabis are
plotted above. It’s clear that selective breeding for marijuana has produced
strains high in THC (x symbols on chart) and low in CBD (the antidote to THC).
Selective breeding for industrial hemp has produced just the opposite (black
box symbols on chart). In between are intermediates (the remaining symbol on
chart) that approach THC:CBD ratios of 1.
When ingested, CBD acts as an antidote to THC, so it’s
obvious why marijuana growers select for not only high THC, but low CBD. It’s
also obvious that industrial hemp isn’t marijuana.
A Very Brief Legal History
In 1937, Congress enacted the Marihuana Tax Act. It placed a
prohibitively high tax on marihuana that was a crime not to pay. At the time,
Congress didn’t know as much about industrial hemp not being marijuana, but it
knew that what we now call industrial hemp was useful and the tax was reduced
to a very low amount for licensed “marihuana” (pronounced “industrial hemp”)
growers. Over the decades, it became increasingly difficult for farmers to get
licenses, save for World War II when the Japanese cut off our supplies of
Manila hemp (not a true hemp). Until 2014, the last legal industrial hemp crop
was grown in Wisconsin in 1957.
As there was a war on, the federal government actively
promoted industrial hemp cultivation during World War II. Source: Internal
Revenue Service, US Department of the Treasury available from Wikipedia.
In 1970, Congress enacted the Controlled Substances Act and
any distinction federal law made in regard to what was increasingly called
industrial hemp was lost to the statute books.
While Much Policy and Political Progress Has Occurred,
It’s Still Generally Illegal to Cultivate Industrial Hemp in the United States
While there has been much political progress to relegalize
industrial hemp, it is not enough to sustain the ecologically, economically and
socially viable domestic cultivation of industrial hemp. In the United States,
while it is generally legal to possess industrial hemp and products made from
it, it is generally not legal to grow industrial hemp.
The good news is that 27 of these united states have
reformed their drug laws so as to no longer treat industrial hemp as marijuana
(some other states may soon follow). Some states have even enacted laws to
promote industrial hemp cultivation. In the 2014 farm bill,
Congress allowed for the limited cultivation of industrial hemp for research
purposes. However, U.S. industrial hemp cultivation is limited solely:
•
(a) to states that have legalized industrial
hemp;
•
(b) by state or academic institutions; and
•
(c) for research purposes.
That means that industrial hemp cultivation is still illegal
in 23 states and cannot be freely grown in any state.
In the U.S. House of Representatives, 66 Members (including
23 Republicans) have signed on to the Industrial Hemp Farming Act (H.R.
525), sponsored by Rep. Thomas Massie (R-KY) that would fully legalize
industrial hemp cultivation. In the U.S. Senate, 11 senators have cosponsored
companion legislation (S.134)
sponsored by Sen. Ron Wyden (D-OR), including Majority Leader Mitch McConnell
(R-KY) and presidential candidates Rand Paul (R-KY) and Bernie Sanders (I-VT).
Alas, neither bill has been given a hearing. You can find the latest
information on political actions to relegalize industrial hemp on the Vote Hemp website.
The combine and the tractor may be American-made, but the
trailer and the industrial hemp are French. Source: Aleks on Wikipedia under a
Creative Commons Attribution-Share Alike License.
Petitioning the Government for Redress of Grievances
The First Amendment
of the United States Constitution guarantees the right of citizens to “petition
the government for a redress of grievances.” One way this right has been
operationalized is through the Administrative
Procedure Act of 1946 (APA), which provides for citizens to file formal
administrative rulemaking petitions, in this case to change the rules that say
industrial hemp is marijuana.
Under the law, a government rule must be based on “substantial evidence.”
Industrial hemp is, as a matter of fact, not marijuana. Most other industrial
democracies distinguish the two varieties of C. sativa as now do the majority
of U.S. states. It’s not rational for DEA to continue to conflate industrial
hemp and marijuana. If accepted, the formal petition will end the near eight
decades of inappropriate illegality for a very useful plant.
The Relegalizing Industrial Hemp Formal Administrative
Rulemaking Petition
First, we file the petition. It will be fully documented and
fully cited and be at least 100 pages.
Then, it is likely that DEA will sit on the petition and not
do what is required by its own regulations and by the APA. After a reasonable
amount of time (around a year), if DEA hasn’t told the petitioners that it is
actually considering the petition, petitioners will file a procedural lawsuit
in federal court to compel DEA to act. The judge would likely put DEA on a
timeline such that if DEA failed to adhere, the agency or its officials could
be held in contempt of court.
Eventually, DEA will decide on the petition. But before
that, under its own regulations
to carry out the Controlled
Substances Act (CSA), DEA must refer our petition to the Secretary of the
Department of Health and Human Services (HHS) for an expert scientific opinion
on whether industrial hemp is marijuana.
If HHS agrees that industrial hemp is not marijuana, then
DEA must accept that finding and change its rules meaning industrial hemp would
be removed from the Controlled Substances Schedule! While the scientific and medical
evidence is overwhelming that industrial hemp is not marijuana, it is likely
that HHS and DEA will not change their contention.
Petitioners will seek an evidentiary hearing and an
opportunity to cross-examine the HHS official who prepares the recommendation
report to DEA. We will build the administrative record to prepare for
substantive litigation to ask a federal judge to find DEA’s decision on the
petition, if contrary to the requested result, arbitrary and capricious and
without substantial evidence.
If DEA Says Yes
If DEA accepts our formal administrative rulemaking
petition, then the Relgalizing Industrial Hemp Project was a stunning
success. It’s farming time!
If DEA Says No
If DEA rejects our formal administrative rulemaking
petition, then the Relegalizing Industrial Hemp Project was a qualified
success. It’s litigation time!
A Relegalizing Industrial Hemp Project—Phase II will be launched
to fund the substantive litigation over the denial of the official petition
submitted under this Relegalizing Industrial Hemp Project—Phase I.
How About Those Perks?!
We’re not making a great new device or creating a work of
art. We’re seeking to change public policy for the benefit of this and future
generations. This all makes offering rewards more challenging. We cannot
provide you a new and useful device or a book or a DVD or a streaming
opportunity and other tangible items. We cannot offer you the opportunity to
see a play or a film or any other sensory experience. Fundamentally, your
reward will be knowing that you helped fund the relegalization of industrial
hemp in the United States after nearly eight decades of irrational illegality.
What we are offering as rewards is an opportunity to let the
Drug Enforcement Administration know directly that you believe they are wrong
about industrial hemp and are putting some money where your mouth is. In an
appendix to the formal administrative rulemaking petition we’ll be submitting
to DEA, we’ll include a list of the Relegalizing Industrial Hemp Project
supporters (if you don’t want on that list, but still want to contribute, just
let us know after you donate).
The larger the donation, the more prominent the listing.
Here’s what we mean:
Progressively larger contributions result in progressively
more prominent visibility of your name. If you make a $10,000 contribution
(yay!!), alas we can’t add any visual prominence to your name in the petition,
as it will be on the cover page along with other official petitioners!
While the legend that the 18th Century Massachusetts
merchant, smuggler, statesman, and prominent patriot of the American Revolution
John Hancock signed his name so large on the Declaration of Independence was
that so King George III could see it without his spectacles is apocryphal,
here’s your chance to not require the DEA Administrator to reach for their
glasses.
Conclusion
To fully relegalize industrial hemp in the United States,
either the:
• Congress must amend the Controlled Substances Act (CSA) to
redefine “marihuana” to not include industrial hemp; or
• the Drug Enforcement Administration must do the same thing by
amending its regulations, using authority to do so granted by Congress in the
CSA.
While we believe the votes would be there in both houses of
Congress to enact the Industrial Hemp Farming Act into law—if the bills were
allowed to receive a floor vote—the general dysfunction of Congress these days
mean that such events are highly unlikely. When Congress enacted the CSA, it
provided for the DEA to add to, delete from, or move within the official drug
schedules, based on new information. In regard to industrial hemp, DEA has
failed to do its job. Congress doesn’t have to act on legislation, but DEA has
to act upon a formal administrative rulemaking petition. There is no doubt as
to whether industrial hemp will be fully relegalized in the United States; the
only question is when. The formal administrative rulemaking petition is to
ensure timely relegalization. Industrial hemp advocates must continue to exert
political pressure on Congress. The formal administrative rulemaking petition
will exert political pressure on the Administration and if it doesn’t work, legal
pressure will also be applied.
What If We Exceed the Indiegogo Project Goal?
The $40,000 goal was chosen to meet the minimum
bare-bones project budget. $40,000 is enough to get the project done (and we
will!), but it doesn’t actually cover all the legitimate costs that should be
covered.
A proper and fair budget for the project is $207,000 and we
are also trying to raise funds from sources outside of Indiegogo. As
$167,000 is quite a difference, just what would we do with the “extra” money?
First and foremost, the chief petitioners would be
compensated equitably. Under the $40,000 budget, we’ll be working for far less than
minimum wage. If we raise more than $40,000—either in Indiegogo and/or
outside of Indiegogo—we’ll pay ourselves closer to what we make per hour
working for other clients. We wouldn’t have to sleep on people’s floors, we
could avoid red-eye plane flights and we wouldn’t have to reach into our own
pockets to cover legitimate project expenses. We could compensate the outside
experts the project needs at a level they deserve and are worth.
If we were merely soulless economic actors, we’d simply do an Indiegogo campaign for $207,000 and if not enough of you stepped up, we’d step out
and go back to making our livings doing other work. However, we are in a very
poor bargaining position, because our passion is relegalizing industrial hemp
for the benefit of this and future generations. This twin curses of caring and commitment means
that to do this project for $40,000 (and we will!), we’re sacrificing money
that we could be making elsewhere, at the cost of having less money today and
for retirement.
If we exceed our total fundraising goals, any funds will be
reserved for the Relegalizing Industrial Hemp Project—Phase II—litigation in
federal court to overturn a negative decision by the Drug Enforcement
Administration (see “Risks and Challenges” below).
This Indiegogo campaign will fund the creation and filing
and pursuit of a formal administrative rulemaking petition, including a final
decision by DEA.
If again true to form, DEA will continue to stonewall by
incorrectly conflating industrial hemp and marijuana and the agency will deny
the administrative rulemaking petition. This will be the end this Relegalizing
Industrial Hemp Project: Phase I and we would launch another Indiegogo Campaign
entitled Regalizing Industrial Hemp Protect: Phase II to raise funds for the
litigation (perhaps we’ll subtitle it “Suing the Bastards”).
Conclusion
The evidence is overwhelming and there is no substantial
evidence for DEA to continue to conflate industrial hemp and marijuana in the
federal drug schedules. Therefore, DEA would be acting in an arbitrary and
capricious manner and that is illegal under federal law. The continued legal
entwining of industrial hemp and marijuana is not based on substantial evidence
and pretending that there is, DEA is acting in an arbitrary and capricious manner.
A federal court judge is unlikely to tell DEA what to do,
but only that what it did is illegal. The case will be remanded by the court to
DEA for further consideration. While we would have won the litigation,
industrial hemp will still not be relegalized.
DEA may try to concoct new “substantial evidence” in support
of a new negative decision. If they do, we’ll take them to court again (a
Releglizing Industrial Hemp Project—Phase III, if need be). DEA will run out of
excuses before we run out of Indiegogo projects.
The wheels of justice may grind slowly, but they grind
exceedingly fine. We’ll all have a fine time grinding away.
In any case, we are in it for the long term. It usually
takes about a generation (defined by demographers as ~30 years) to change the
world. The good news is that clock on industrial hemp relegalization isn’t
starting now, but started over two decades ago. Historically, we’re right on
track for historic change. The policy, political, social, economic and
environmental stars are aligning. This alignment is a convergence of outside
forces unrelated (but beneficial to this effort) and the great past and
continuing work of thousands of Americans who advocate for industrial hemp.
This formal rulemaking petition can be what bumps that most important star into
alignment and brings down DEA’s house of cards, once and for all.