TED Case Studies

Hemp Case (HEMP)

CASE NUMBER:      398
CASE MNEMONIC:    HEMP
CASE NAME:        Hemp Legalization

I. Identification

1. The Issue

Hemp is a fiber product that has dozens of potential uses, yet it cannot be grown in the United States because it is technically the same species as marijuana, cannabis sativa, which has been illegal in the United States since 1937. In recent years, however, such diverse interests as environmentalists, paper manufacturers, and drug legalization activists have joined forces to advocate amending U.S. drug laws to distinguish between the kind of cannabis one smokes and the kind that could revolutionize several industries. Changing the law could impact the environment in the US because hemp could revolutionize the paper industry and reduce deforestation, and because hemp production requires the use of far fewer pesticides than the fibers it could replace. It also would impact trade issues because the current ban requires hemp to be imported on a large scale from abroad.

2. Description


Hemp is viewed by many to be one of the world's most perfect products. The plant's fiber produces rope and cloth which is strong and resilient. Hemp makes pulp and other paper products cheaper, cleaner and more efficiently than wood. Hemp pulp can be used as a biomass fuel, with much less negative side effects such as air pollution, and could some day replace petroleum as the primary (and importantly, a home-grown) source of fuel in the US. Hemp may also be consumed as a cheap source of protein and is believed to have many medical applications.

In fact, a legendary article in Popular Mechanics in 1938 proclaimed that hemp could be manufactured into more than 25,000 environmentally friendly products. (1)

Hemp is considered by many to be the world's oldest agricultural product and has a long history in the US as an important fiber product. Both the Declaration of Independence and the original St. James Bible are printed on hemp paper. George Washington advocated a hemp-based economy for the US.2) Hemp has long been the best source for strong ropes and sails which were crucial in the development of the US navy. In fact, it has been said that hemp was as important to the US during the 1800's as oil is now.(3)


It is clear that even in the 30's, US leaders recognized the value of hemp, even while they banned it. In 1942, the government lifted the ban and encouraged farmers to cultivate hemp to help with the war effort, widely distributing a film call "Hemp for Victory" produced by the USDA.(4) This relaxation of the laws against hemp was terminated by 1957, and the ban continues today under the 1972 Controlled Substances Act.

Hemp was cultivated heavily in the US until 1937 when the Marihuana Tax Act was passed by Congress. The impetus to make cannabis illegal came from several sources. In addition to the anti-drug forces, frequently referred to these days as the "Reefer Madness Movement," but from petrochemical and pharmaceutical industries who in the 30's were pushing their newly developed products like plastics and synthetic fabrics, and wanted to eliminate competition by hemp products.

DuPont Chemicals, for example, had just invented a process called chemical pulping which was much cheaper than the mechanical pulping process used up to this same time. Around the same time, a new process was developed for processing hemp. DuPont could corner the market on paper production if they could eliminate the hemp producers. Notably, this deal was financed by Andrew Mellon, whose nephew-in-law Harry Anslinger headed up the FBNDD (the forerunner to the DEA), and who had appointed Anslinger to that position in 1931. (5)


At this point, it is legal in the United States to possess and sell the parts of the cannabis plant which strictly constitute hemp, i.e., the stalk, stem and roots of the plant. In these parts, there are only trace amounts of delta-9 tetrahydrocannabinol (THC), the drug which produces a psychoactive effect when ingested or smoked. This is the reason that raw hemp fiber and hemp products are legal to own. The leaves and seeds of the cannabis plant are rich in THC, and possession and sale of these is illegal. Since hemp cannot be grown without seeds or leaves, it is illegal to grow hemp regardless of whether it is to be used for industrial purposes.

Advocates for hemp legalization argue that US drug laws could be amended to allow the growing of cannabis for industrial hemp, but keeping marijuana growing illegal. Drug and law enforcement agencies, however, maintain that marijuana growers would be able to hide their cannabis plants among the legal hemp plants and it would be impossible for narcotics agents to distinguish the two.

There apparently is a process through the Drug Enforcement Agency (DEA) to request permission to grow industrial hemp, but according to NORML, the DEA has denied "every permit for large- scale hemp farming within America's borders for the last forty years."(6) The reasoning of the DEA and other law enforcement agencies in not allowing industrial hemp to be grown is that narcotics agents (narcs) could not distinguish between the two plants. Hemp advocates argue, however, that the plants look quite different. In order to produce THC rich leaves, marijuana plants are kept cropped very low to the ground. Hemp, however, comes from the long fibrous stalk, so a good hemp plant is tall, broad, and less leafy. The leaves of industrial hemp have so little THC that smoking them produces virtually no "high" and gives the user a headache.(7) Since the DEA's primary means of detecting illegal pot growing operations is by helicopter, they maintain that they would be unable to distinguish the two plants from the air. The DEA argues that marijuana growers could sneak their illicit plants into fields of hemp.


In the past, the only vocal advocates for legalization of hemp were also arguing for legalization of drugs generally, and this made it easy for anti-legalization forces to dismiss the arguments, claiming these people are just using hemp as a stepping stone for legalization of marijuana and harder drugs. For example, when Colorado considered an initiative to begin investigating the possibility of legalizing industrial hemp, dozens of state narcotics agents and representatives of the DEA testified that pro- hemp activists were a front for drug dealers who want to legalize marijuana. (8) The obvious answer to this argument, of course, that drug dealers are the last ones who would argue for legalization of marijuana because the price for a plant which is so easy to grow would plummet if it were no longer illegal to grow it. It should also be remembered that these agents' jobs are threatened if the US relaxes its "War on Drugs" which the US public has heretofore been willing to support wholeheartedly. Certainly the leaders of the DEA, who presumably want to maintain current funding levels, also have a lot to lose should marijuana or other drugs become legal.

The tide may be turning in hemp's favor in the near future, and more and more people outside the pro-drug liberalization lobby now support development of a hemp industry. The benefits of hemp as a product are becoming clear not only to environmentalists but to entire industries such as the clothing and paper industries. State legislatures and unions are joining in the fight because they see the potential for creating jobs in the US, and because they recognize the damage that anti-hemp laws do to US trade. The movement has also gained a great deal of strength in the South, where declining cigarette sales have made farmers and state legislatures consider the benefits of hemp production as an industry to replace tobacco. Because the decline of the tobacco industry ultimately could affect millions of jobs, the residents of these states will likely find arguments for legalization of hemp especially persuasive. This should make the movement for legalization much stronger in the near future.

The American Farm Bureau Federation, with 4.5 million members, the largest farmers association in the US, joined the pro-hemp movement in 1996. An editorial in its publication referred to hemp as "one of the most promising crops in half a century...[It] could be the alternative crop farmers are looking for." (9) It could also help growth in rural areas by spurring investment in processing mills. (10) "We're talking jobs," said Erwin Sholts, Director of Diversification at Wisconsin's Department of Agriculture. "Why should we import a product in high demand when we can grow it here?" (11)

The environmental benefits of the plant are obvious. It is a very hearty plant which grows very quickly and across a broad geographic range. Where a tree requires decades to grow to the cultivation stage, hemp plants mature in 100 days, so that over time, hemp yields 2-4 times more fiber per acre than trees. (12) Med Byrd, a paper researcher at North Carolina State University, indicated that the paper industry is "aggressively seeking data on hemp," and notes that law enforcement, in maintaining its stern position against hemp, "throws away science and common sense." (13)

Another advocate for legalization of hemp is The International Paper Company which believes hemp could be the way to address what they consider the "fiber crisis" which is looming worldwide. This crisis is caused by skyrocketing demand for paper and other fiber products such as pulp and packing materials which the timber companies cannot supply because the global environmental movement has driven the cost of buying forest and processing wood products much higher. Companies like International Paper believe that growing hemp domestically could revitalize US paper companies' ability to compete internationally.(14)

To date, the debate has been fairly limited to within industries and particular regions, but with the growing popularity of hemp products and the increasing visibility of those involved in the debate, the subject is likely to gain more national attention. Recently, actor Woody Harrelson has gained national attention for the issue by placing himself in the center of a test case challenging the Kentucky law which does not distinguish between growing marijuana and industrial hemp.(15) In June 1996, Harrelson was arrested for planting four industrial hemp seeds in the eastern Kentucky county. While his case has been pending, he has traveled to schools talking about the distinction between the two plants and creating a great deal of controversy in the meantime.

Several states are currently considering initiatives to begin at least experimenting with hemp cultivation and others are considering amending laws to allow the growing of industrial hemp, such as redefining the controlled substance as only those parts of the plant that contains a certain quantity of THC.

3. Related Cases

PULP - Wood Pulp and Trade

COLCOCA - Colombia and Coca

COCA - Coca Production

BOLCOCA - Bolivia and Coca

USRECYC - US Recycling Law

4. Draft Author:

D. Michelle Domke, Spring 1997

II. Legal Clusters


5. Discourse and Status: Disagreement and Allegation


6. Forum and Scope: US and Unilateral


7. Decision Breadth: US(1)

At the moment, the debate is internal to the US. A similar battle is being waged in Canada and Australia, and both those countries have recently adopted limited experiments in hemp cultivation. This has implications for international trade issues because the ban on growing hemp requires the US to import hemp products. If Canada lifts its ban on growing hemp, this will certainly prompt manufacturers to begin production of hemp products across the border, given the NAFTA treaty creation of open trade borders between the US and Canada, and this should certainly increase the debate within the US about liberalizing the anti-hemp laws.

8. Legal Standing: Law

Federally, marijuana was originally banned in 1937 by the Marihuana Tax Act. The federal ban is now contained in the 1972 Controlled Substances Act, which considers the species cannabis sativa a controlled substance, without distinguishing between hemp and marijuana or defining the way it is grown or the purpose for which it is used. Virtually every state has banned the species under state law, but this may be changing, as a few states (California and Arizona) have now created exceptions to the ban on marijuana for medical purposes.

It is significant that federal law will trump state law on drug issues. In 1996, California passed a law allowing doctor's to prescribe marijuana to patients for medical purposes. So far, the federal government has been vague about its official policy on this situation, but has indicated that they have the authority under federal law to arrest doctors who prescribe marijuana and the patients who use it. They have also hinted obliquely that they could take away a doctor's license to prescribe medicine (which for an AIDS specialist is essentially like taking away his license to practice) if they violate federal law on marijuana.

On the hemp issue, the DEA is unequivocal that the agency will not be able to distinguish between legal and illegal cannabis plants and thus staunchly opposes any change in the laws of any state. A full discussion of federalism versus state's rights is beyond the scope of this paper. Hypothetically, however, if a state were to pass laws legalizing hemp, they would not be nullified by the federal law, but federal law enforcement officials could still arrest those planting hemp and prosecute them under federal law.

There is potential here for a constitutional challenge to the authority of Congress to dictate national drug policy. This authority is based on the commerce clause and the fact that contradictory laws on drugs in different states would create interstate drug trafficking and thus disrupt interstate commerce. Since the effect of the federal law is to totally prevent an entire industry from existing, an argument could be made that this is an example of overreaching Congress' power under the commerce clause.

III. GeographicClusters


9. Geographic Locations

a. Geographic Domain: North America

b. Geographic Site: North America

c. Geographic Impact: USA

10. Sub-National Factors: Yes (California & Arizona)


11. Type of Habitat: Temperate


IV. TradeClusters


12. Type of Measure: Regulatory Ban

Growing hemp is illegal throughout the United States under federal law. The law is not designed to restrict trade, and in fact, has negative impact on US trade and a positive impact on imports.

13. Direct v. Indirect Impacts: Indirect


14. Relation of Trade Measure to Environmental Impact

a. Directly Related to Product:       Yes     Hemp
b. Indirectly Related to Product:     Yes     Paper, textiles,
pharmaceuticals, food, fuel 
c. Not Related to Product:            No
d. Related to Process:                Habitat

15. Trade Product Identification: Hemp


16. Economic Data

Worldwide Sales of Hemp
1993
1995
1996
2001
(predicted)
$5 million (16) $75 million (17) $100 million (18) $600 million (19)
The hemp industry has been expanding rapidly since the late 1980's when a book by Jack Herer called The Emperor Wears No Clothes, the definitive book on hemp, raised worldwide interest in the product. The first data available is for 1993, when worldwide sales of hemp were $5 million, but by 2001, this figure is expected to rise to $600 million, according to Hemptech, a California consulting firm.

More research is required to determine the potential value of hemp products to the United States and the world. So far there has been research which suggests that hemp could ultimately be used as an alternative to petroleum, If this is true, hemp could once again be the most important product in the world.

17. Impact of Trade Restriction: High


18. Industry Sector: Fiber


19. Exporters and Importers: USA and Many

The primary exporters of hemp to the US are Asia and Europe (primarily Germany).

V. EnvironmentClusters


20. Environmental Problem Type: Deforestation and Pollution


21. Name, Type, and Diversity of Species

Name: Cannabis Sativa

Type: Plant

Diversity: US Biodiversity Data

22. Resource Impact and Effect: Low and Product

Using hemp in place of timber as a source of paper could radically reduce deforestation. One acre of hemp produces four times as much pulp as an acre of timber.(20) Hemp also grows on almost any land and in any region, so it could be grown throughout the US, unlike the trees which are used for paper and which have a fairly limited habitat. Hemp can also be grown on unproductive land and between seasons and can even be used to enrich soil which has become leached of minerals.(21)

Hemp can also be grown without the pesticides that are necessary for cultivation of other textiles and paper products, such as cotton which requires large amounts of pesticides and today is the most polluting of all agricultural industries.(22) Cotton production, in fact, accounts for half the pesticide use in the US, and that product is one of the major products for which hemp could be substituted.(23)

23. Urgency of Problem: High

Deforestation is an urgent problem around the world, caused by both urbanization and the need for timber for building and paper products. Hemp provides a more efficient alternative to timber in the production of paper products, and can produce building materials inexpensively. (24)

The paper industry is also suffering a "fiber crisis" because the industry is unable to meet the international demand for pulp and paper products from lesser developed countries. The industry in the US especially has difficulty producing these products for export because the environmental movement has pushed up the cost of cutting and processing trees. Hemp would provide an alternative for fiber production that could solve this crisis and increase the value of US exports.

24. Substitutes:

Hemp provides a substitute for many less environmentally friendly products such as cotton.

VI. OtherFactors


25. Culture: No


26. Trans-Boundary Issues: No


27. Rights: No


28. Relevant Literature

Anthony Clarke, "The Hemp Revolution" (documentary)

Chris Conrad, Hemp: Lifeline to the Future (1993).

Richard Harrington, "The Case for Hemp, a Resource Misjudged," Washington Post, Mar. 22, 1996, B7.

Jack Herer, The Emperor Wears No Clothes (1985).

Hemp, Farming and the Environment, Grassroots Party of Minnesota Home Page.

Brian S. Julin, ed., Cannabis/Marijuana FAQ, a detailed discussion of "frequently asked questions" about marijuana and hemp produced by pro-legalization students at Ohio State.

John Mintz, "Splendor in the Grass?" Washington Post, Jan. 5, 1997, H1.

NORML Home Page

Notes

(1) "New Billion-Dollar Crop," Popular Mechanics, 1938, available on-line via the NORML Home Page.

(2) NORML Home Page.

(3) John Mintz, "Splendor in the Grass?" Washington Post, Jan. 5, 1997.

(4) NORML, n. 2.

(5)

Brian S. Julin, Cannabis/Marijuana FAQ, at http://www.cis.ohio-state.edu/hypertext/faq/usenet/drugs/hemp- marijuana/faq/html.

(6) NORML, n. 2 and Julin, n. 5.

(7) Mintz, n. 3.

(8) Id.

(9) Id.

(10) Id.

(11) Id.

(12) Id.

(13) Id.

(14) Id.

(15) "Around the Commonwealth: Northern Kentucky," Cincinatti Enquirer, 2/1/97, page C2.

(16) Mintz, n. 3.

(17) Id.

(18) US News & World Report, 1/20/97, page 54, 56.

(19) Mintz, n. 3.

(20) Richard Harrington, "The Case for Hemp, a Resource Misjudged," Washington Post, Mar. 22, 1996, B7.

(21) Hemp, Farming and the Environment, Grassroots Party of Minnesota Home Page.

(22) Harrington, n. 20.

(23) Julin, n. 5.

(24) Vincent H. Miller, "A Grass House in Your Future?" Freedom Network News, June/July 1989.

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May, 1997