TED Case StudiesHemp Case (HEMP)

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

IDENTIFICATIONLEGAL CLUSTERSGEOGRAPHIC CLUSTERSTRADE CLUSTERSENVIRONMENT CLUSTERSOTHER FACTORS

I. Identification1. The IssueHemp is a fiber product that has dozens of potential uses, yet it cannot be grown in the United States becauseit is technically the same species as marijuana, cannabis sativa, which has been illegal in the United Statessince 1937. In recent years, however, such diverse interests as environmentalists, paper manufacturers, anddrug legalization activists have joined forces to advocate amending U.S. drug laws to distinguish between thekind of cannabis one smokes and the kind that could revolutionize several industries. Changing the law couldimpact the environment in the US because hemp could revolutionize the paper industry and reducedeforestation, and because hemp production requires the use of far fewer pesticides than the fibers it couldreplace. It also would impact trade issues because the current ban requires hemp to be imported on a largescale from abroad.

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

In fact, a legendary article in Popular Mechanics in 1938 proclaimedthat hemp could be manufactured into more than 25,000environmentally friendly products. (1)Hemp is considered by many to be the world's oldest agriculturalproduct and has a long history in the US as an important fiberproduct. Both the Declaration of Independence and the original St.James Bible are printed on hemp paper. George Washingtonadvocated a hemp-based economy for the US.2) Hemp has long beenthe best source for strong ropes and sails which were crucial in thedevelopment of the US navy. In fact, it has been said that hemp wasas important to the US during the 1800's as oil is now.(3)

It is clear that even in the 30's, US leadersrecognized the value of hemp, even whilethey banned it. In 1942, the government lifted the ban and encouraged farmers tocultivate hemp to help with the war effort, widely distributing a film call "Hemp forVictory" produced by the USDA.(4) This relaxation of the laws against hemp wasterminated by 1957, and the ban continues today under the 1972 ControlledSubstances 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 petrochemicaland pharmaceutical industries who in the 30's were pushing their newly developed products like plastics andsynthetic fabrics, and wanted to eliminate competition by hemp products.DuPont Chemicals, for example, had just invented a process called chemical pulping which was muchcheaper than the mechanical pulping process used up to this same time. Around the same time, a new processwas developed for processing hemp. DuPont could corner the market on paper production if they couldeliminate the hemp producers. Notably, this deal was financed by Andrew Mellon, whose nephew-in-lawHarry Anslinger headed up the FBNDD (the forerunner to the DEA), and who had appointed Anslinger tothat position in 1931. (5)At this point, it is legal in the United States to possess and sell the parts ofthe cannabis plant which strictly constitute hemp, i.e., the stalk, stem androots of the plant. In these parts, there are only trace amounts of delta-9tetrahydrocannabinol (THC), the drug which produces a psychoactive effectwhen ingested or smoked. This is the reason that raw hemp fiber and hempproducts are legal to own. The leaves and seeds of the cannabis plant are richin THC, and possession and sale of these is illegal. Since hemp cannot begrown without seeds or leaves, it is illegal to grow hemp regardless ofwhether it is to be used for industrial purposes.Advocates for hemp legalization argue that US drug laws could beamended to allow the growing of cannabis for industrial hemp, butkeeping marijuana growing illegal. Drug and law enforcement agencies, however, maintain thatmarijuana growers would be able to hide their cannabis plants among the legal hemp plants and itwould 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 farmingwithin America's borders for the last forty years."(6) The reasoning of the DEA and other law enforcementagencies in not allowing industrial hemp to be grown is that narcotics agents (narcs) could not distinguishbetween the two plants. Hemp advocates argue, however, that the plants look quite different. In order toproduce THC rich leaves, marijuana plants are kept cropped very low to the ground. Hemp, however, comesfrom the long fibrous stalk, so a good hemp plant is tall, broad, and less leafy. The leaves of industrial hemphave so little THC that smoking them produces virtually no "high" and gives the user a headache.(7) Sincethe DEA's primary means of detecting illegal pot growing operations is by helicopter, they maintain that theywould be unable to distinguish the two plants from the air. The DEA argues that marijuana growers couldsneak their illicit plants into fields of hemp.

In the past, the only vocal advocates for legalization of hemp were also arguing forlegalization of drugs generally, and this made it easy for anti-legalization forces to dismissthe arguments, claiming these people are just using hemp as a stepping stone for legalizationof marijuana and harder drugs. For example, when Colorado considered an initiative tobegin investigating the possibility of legalizing industrial hemp, dozens of state narcoticsagents 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 drugdealers are the last ones who would argue for legalization of marijuana because the price for a plantwhich is so easy to grow would plummet if it were no longer illegal to grow it. It should also beremembered that these agents' jobs are threatened if the US relaxes its "War on Drugs" which the USpublic has heretofore been willing to support wholeheartedly. Certainly the leaders of the DEA, whopresumably want to maintain current funding levels, also have a lot to lose should marijuana or otherdrugs become legal.The tide may be turning in hemp's favor in the near future, and more and more people outside the pro-drugliberalization lobby now support development of a hemp industry. The benefits of hemp as a product arebecoming clear not only to environmentalists but to entire industries such as the clothing and paperindustries. State legislatures and unions are joining in the fight because they see the potential for creating jobsin the US, and because they recognize the damage that anti-hemp laws do to US trade. The movement hasalso gained a great deal of strength in the South, where declining cigarette sales have made farmers and statelegislatures consider the benefits of hemp production as an industry to replace tobacco. Because the declineof the tobacco industry ultimately could affect millions of jobs, the residents of these states will likely findarguments for legalization of hemp especially persuasive. This should make the movement for legalizationmuch 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 mostpromising crops in half a century...[It] could be the alternative crop farmers are looking for." (9) It could alsohelp growth in rural areas by spurring investment in processing mills. (10) "We're talking jobs," said ErwinSholts, Director of Diversification at Wisconsin's Department of Agriculture. "Why should we import aproduct 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 andacross a broad geographic range. Where a tree requires decades to grow to the cultivation stage, hemp plantsmature in 100 days, so that over time, hemp yields 2-4 times more fiber per acre than trees. (12) Med Byrd, apaper researcher at North Carolina State University, indicated that the paper industry is "aggressively seekingdata on hemp," and notes that law enforcement, in maintaining its stern position against hemp, "throws awayscience 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 causedby skyrocketing demand for paper and other fiber products such as pulp and packing materials which thetimber companies cannot supply because the global environmental movement has driven the cost of buyingforest and processing wood products much higher. Companies like International Paper believe that growinghemp 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 growingpopularity of hemp products and the increasing visibility of those involved in the debate, the subject is likelyto gain more national attention. Recently, actor Woody Harrelson has gained national attention for the issueby placing himself in the center of a test case challenging the Kentucky law which does not distinguishbetween growing marijuana and industrial hemp.(15) In June 1996, Harrelson was arrested for planting fourindustrial hemp seeds in the eastern Kentucky county. While his case has been pending, he has traveled toschools talking about the distinction between the two plants and creating a great deal of controversy in themeantime.Several states are currently considering initiatives to begin at least experimenting with hemp cultivation andothers are considering amending laws to allow the growing of industrial hemp, such as redefining thecontrolled substance as only those parts of the plant that contains a certain quantity of THC.

3. Related CasesPULP - Wood Pulp and TradeCOLCOCA - Colombia and CocaCOCA - Coca ProductionBOLCOCA - Bolivia and CocaUSRECYC - 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, andboth those countries have recently adopted limited experiments in hemp cultivation. This has implications forinternational trade issues because the ban on growing hemp requires the US to import hemp products. IfCanada lifts its ban on growing hemp, this will certainly prompt manufacturers to begin production of hempproducts across the border, given the NAFTA treaty creation of open trade borders between the US andCanada, and this should certainly increase the debate within the US about liberalizing the anti-hemp laws.

8. Legal Standing: LawFederally, marijuana was originally banned in 1937 by the Marihuana Tax Act. The federal ban is nowcontained in the 1972 Controlled Substances Act, which considers the species cannabis sativa a controlledsubstance, without distinguishing between hemp and marijuana or defining the way it is grown or the purposefor which it is used. Virtually every state has banned the species under state law, but this may be changing, asa few states (California and Arizona) have now created exceptions to the ban on marijuana for medicalpurposes.It is significant that federal law will trump state law on drug issues. In 1996, California passed a law allowingdoctor's to prescribe marijuana to patients for medical purposes. So far, the federal government has beenvague about its official policy on this situation, but has indicated that they have the authority under federallaw to arrest doctors who prescribe marijuana and the patients who use it. They have also hinted obliquelythat they could take away a doctor's license to prescribe medicine (which for an AIDS specialist is essentiallylike 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 andillegal cannabis plants and thus staunchly opposes any change in the laws of any state. A full discussion offederalism versus state's rights is beyond the scope of this paper. Hypothetically, however, if a state were topass laws legalizing hemp, they would not be nullified by the federal law, but federal law enforcementofficials 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 drugpolicy. This authority is based on the commerce clause and the fact that contradictory laws on drugs indifferent states would create interstate drug trafficking and thus disrupt interstate commerce. Since the effectof the federal law is to totally prevent an entire industry from existing, an argument could be made that this isan example of overreaching Congress' power under the commerce clause.

III. GeographicClusters

9. Geographic Locations

a. Geographic Domain: North Americab. Geographic Site: North Americac. Geographic Impact: USA

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

11. Type of Habitat: Temperate

IV. TradeClusters

12. Type of Measure: Regulatory BanGrowing hemp is illegal throughout the United States under federal law. The law is not designed to restricttrade, 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 Impacta. Directly Related to Product: Yes Hempb. Indirectly Related to Product: Yes Paper, textiles,pharmaceuticals, food, fuel c. Not Related to Product: Nod. Related to Process: Habitat

15. Trade Product Identification: Hemp

1993 1995 1996 2001(predicted)$5 million (16) $75 million (17) $100 million (18) $600 million (19)

16. Economic DataThe hemp industry has beenexpanding rapidly since the late1980's when a book by Jack Herercalled The Emperor Wears NoClothes, the definitive book onhemp, raised worldwide interest in the product. The first data available is for 1993, when worldwide sales ofhemp were $5 million, but by 2001, this figure is expected to rise to $600 million, according to Hemptech, aCalifornia consulting firm.

More research is required to determine the potential value of hemp products to the United States and theworld. So far there has been research which suggests that hemp could ultimately be used as an alternative topetroleum, 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 ManyThe 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 SpeciesName: Cannabis Sativa

Type: PlantDiversity: US Biodiversity Data

22. Resource Impact and Effect: Low and ProductUsing hemp in place of timber as a source of paper could radically reducedeforestation. One acre of hemp produces four times as much pulp as an acre oftimber.(20) Hemp also grows on almost any land and in any region, so it could begrown throughout the US, unlike the trees which are used for paper and which havea fairly limited habitat. Hemp can also be grown on unproductive land and betweenseasons 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 ofother textiles and paper products, such as cotton which requires large amounts of pesticides and today is themost polluting of all agricultural industries.(22) Cotton production, in fact, accounts for half the pesticide usein the US, and that product is one of the major products for which hemp could be substituted.(23)

23. Urgency of Problem: HighDeforestation is an urgent problem around the world, caused by both urbanization and the need for timber forbuilding and paper products. Hemp provides a more efficient alternative to timber in the production of paperproducts, and can produce building materials inexpensively. (24)The paper industry is also suffering a "fiber crisis" because the industry is unable to meet the internationaldemand for pulp and paper products from lesser developed countries. The industry in the US especially hasdifficulty producing these products for export because the environmental movement has pushed up the cost ofcutting and processing trees. Hemp would provide an alternative for fiber production that could solve thiscrisis 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 LiteratureAnthony 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" aboutmarijuana 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.

Go To Super Page

Go to All Cases

Go to TED Categories

May,1997