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U.S. Drug Enforcement Administration (DEA) “Hemp Talking Points”

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[Below, as presented to members of Congress in June 2013 to lobby against proposed industrial hemp legislation in the U.S. Senate and U.S. House. For contrasting views, read about NAIHC board members’ testimony in favor of industrial hemp. Read or download the report which Dr. Paul Mahlberg presented to the Kentucky legislators: “Industrial Hemp and its Relationship to Marijuana.”]

The amendment (Polis) relates to marijuana (hemp) cultivation for industrial purposes. Marijuana (hemp) cultivation is already permitted under current law, provided the grower has obtained a DEA registration. This bill would eliminate the DEA registration requirement and completely decontrol marijuana grown for industrial purposes by defining “hemp” as marijuana that contains 0.3 percent or less THC, then declaring this “hemp” to be a noncontrolled substance. This would clearly impede law enforcement in several respects. First, it is impossible to distinguish a marijuana plant containing 0.3% or less of THC from a marijuana plant containing higher THC levels without scientific analysis. The bill would thereby make it essentially impossible for law enforcement to enter a grow site to determine the THC content of the “hemp” plants since there would be no way to establish probable cause to obtain a search warrant without first entering the premises to collect samples. As a result, the bill would provide easy cover to hide more potent marijuana plants. Second, even if all the marijuana plants contained 0.3 percent or less THC, they would still provide an enormous quantity of psychoactive material because it is very easy and inexpensive to convert low-grade marijuana into high-grade hashish oil. YouTube videos already provide easy-to-follow instructions on how to make hashish oil.

Hemp Talking Points

What is “hemp”?

Hemp” is not a term found in the Controlled Substances Act (CSA). Historically, “hemp” was simply an alternative term used to refer to the cannabis plant (i.e., an alternative to the Spanish-derived term “marihuana”). However, starting in approximately the late 1990s, the term “hemp” increasingly was used to refer specifically to cannabis grown for industrial purposes. (The term “industrial hemp” is also used in this context.) During this time period, some persons have erroneously asserted that “hemp” was a distinct species from marijuana. Botanically speaking, any plant of the genus “cannabis” constitutes marijuana under the CSA – regardless of whether the plant is referred to as “hemp,” “marijuana,” or any other name.

Does “hemp” have different psychoactive properties than marijuana?

The psychoactive properties of a given cannabis plant will depend on the chemical makeup of the plant – not the name (e.g., “marijuana” or “hemp”) that the grower assigns to the plant. The cannabis plant contains roughly 500 different chemicals. The primary psychoactive chemical found in cannabis is tetrahydrocannabinols (THC). Another chemical found in marijuana is cannabidiol (CBD). Among the primary factors that determine the psychoactive properties of a cannabis plant are (1) the amount of THC in the plant and (2) the ratio of THC to CBD in the plant. To oversimplify what is a complex scientific consideration, it is generally the case that the greater the percentage of THC in the plant, the greater the psychoactive effect. However, there is no established minimum threshold amount of THC that a cannabis plant must contain to produce a psychoactive effect. Moreover, the amount of THC that will cause a psychoactive effect will vary among individual users. 

Cannabis grown for industrial purposes does, generally, have a lower THC content than cannabis grown for smoking. However, from a scientific perspective, there is no maximum or minimum amount of THC that will necessarily be contained in a cannabis plant grown for industrial purposes. The genetic makeup of the plant and the environmental conditions in which it is grown will dictate THC content.

For what purposes is “industrial hemp” grown?

In broadest terms, there are two general categories of “industrial” products that are made from the cannabis plant: fiber-derived products and seed-derived products. From the fiber of the plant, one can produce textiles and paper products. The seeds of the plant can be pressed into oil, which is used as additive in food and beverage products. (It should be noted that the FDA has expressly declined to recognize “hemp seed oil” as generally recognized as safe.) The oil from the seeds is also used as an ingredient in personal care products such as soaps, lotions, and shampoos. Cannabis seeds can also be used in bird feed.

Is it legal to grow “hemp” in the United States?

The CSA permits the cultivation of cannabis for industrial purposes, provided the grower has obtained a DEA registration to do so. This requirement applies with respect to all cannabis plants, regardless of the THC content. Every federal court that has examined this issue has so ruled. Monson v. DEA, 589 F.3d 952 (8th Cir. 2009); United States v. White Plume, 447 F.3d 1067 (8th Cir. 2006); New Hampshire Hemp Council v. Marshall, 203 F.3d 1 (1st Cir. 2000). To obtain such a registration, an applicant must demonstrate, among other things, that it will install security measures consistent with the requirements set forth in the DEA regulations.

Does a “hemp” plant with low THC content present any real concerns?

It is true that, if given a choice, marijuana smokers will seek cannabis with a relatively high THC concentration over the type of cannabis typically grown for industrial purposes. However, as indicated, there is no guarantee that a cannabis plant grown for industrial purposes will not cause a psychoactive effect when smoked. Indeed, there have been reported thefts from “industrial hemp” grow facilities. More significantly, even those cannabis plants that have a relatively low THC concentration provide a substantial source of psychoactive material that would be readily exploited by drug seekers if such plants could be easily acquired. Using a relatively simple and inexpensive process of chemical extraction, low grade cannabis (including so-called “industrial hemp”) can be readily converted into a highly potent concentrate known as “hash oil.” Anyone can learn how to make hash oil by watching instructional videos on YouTube.

Indeed, the illicit production of hash oil appears to be a growing and dangerous trend in the United States, and poses a significant harm to our communities and the environment. Just recently, on February 7, 2013, the U.S. Fire Administration (a component of the Federal Emergency Management Agency) issued a bulletin entitled "Hash Oil Explosions Increasing Across U.S." In this bulletin, which is available at www.usfa.fema.gov/fireservice/emr-isac/infograms/ig2013/6-13.shtm#1, the U.S. Fire Administration stated, among other things, that explosions in residences and hotels are being traced back to the production of hash oil using butane and that the number of these incidents appears to be increasing.

Can one tell “industrial hemp” and marijuana apart?

It can be extremely difficult to distinguish cannabis grown for industrial purposes from cannabis grown for smoking. This is especially true if law enforcement is attempting to make this determination without entering the premises on which the plants are being grown. 

It should be noted here that “hemp” grown to produce seeds will appear different from “hemp” grown to produce fiber. Plants grown to produce fiber may (depending on the stage of growth) appear taller and stalkier. In contrast, plants grown to produce seeds may appear bushy and thus more difficult to distinguish from plants for smoking.

As for the THC content of a cannabis plant, this is impossible to determine without performing a chemical analysis of the particular plant. Further, the THC content can vary significantly from plant-to-plant within a given grow site, meaning that testing one plant cannot be relied upon to prove the THC content of neighboring plants.

[Above, the U.S. Drug Enforcement Administration Hemp Talking Points as presented to members of Congress in June 2013 to lobby against proposed industrial hemp legislation in the U.S. Senate and U.S. House. For contrasting views, read about NAIHC board members’ testimony in favor of industrial hemp. Read or download the report which Dr. Paul Mahlberg presented to the Kentucky legislators: “Industrial Hemp and its Relationship to Marijuana.”]

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