Spawned by PA, but all about hemp.

Many states have implemented regulations for industrial hemp since Colorado passed HB12-1099 in 2012, but many still don’t understand the legal circumstances where hemp is misunderstood. Pennsylvania is one of those states.

In October 9, 2001 the DEA Clarifies Status of Hemp in the Federal Register, but this was addressed by the DEA v. HIA lawsuit in 2003 which demonstrates that the DEA has NO JURISDICTION over hemp. Currently, hemp is NOT listed under the DEA Schedule I and is legal.

§1308.11 Schedule I does NOT list hemp (http://www.deadiversion.usdoj.gov/21cfr/cfr/1308/1308_11.htm)

The DEA has no enforcement power over hemp products, it does, in theory, control hemp cultivation. In order to grow hemp in the U.S., you have to have a permit from the DEA which the DEA typically never issues. However, due to state laws implementing hemp cultivation, the U.S. Constitution Tenth Amendment addresses state and individual rights.

To further the argument of legal hemp, in 2003 in accordance with Schedule I, the DEA’s relevant rules and regulations may be enforced only insofar as they ban the presence of marijuana or synthetic THC. There is no restriction over hemp.

Furthermore, the Single Convention of Narcotic Drugs has a provision for industrial use of hemp.

Article 28. Control of cannabis

  1. If a Party permits the cultivation of the cannabis plant for the production of cannabis or cannabis resin, it shall apply thereto the system of controls as provided in Article 23 respecting the control of the opium poppy.
  2. This Convention shall not apply to the cultivation of the cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes.[ defined as: the art or practice of garden cultivation and management.]
  3. The Parties shall adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant.

Personally I see that the SCND not only addresses industrial purposes for fiber and seed, but horticultural growth as well. Horticulture is anything to do with the art, science, technology, and/or business of growing hemp. This includes the cultivation of medicinal hemp, seeds, herbs, sprouts, flowers, and non-food use of industrial hemp such as grass and ornamental trees and plants.

To take this conversation through to a completion, the movement of seeds across America has to be legal, otherwise the government is preventing or reducing competition in a market and limiting a legal businesses function. This would be an anti-competitive practice and create a restraint of trade.

In SB-50 under 4(3).(D) PROHIBITION.–A PERSON MAY NOT GROW, CULTIVATE, MARKET OR SELL INDUSTRIAL HEMP UNLESS ALL OF THE FOLLOWING APPLY:
It is recommended that “MARKET OR SELL” be removed as hemp seed and oil are already available in supermarkets and this should not restrict the marketing or sale of hemp.

There are no laws preventing or restricting “others” from growing hemp.

In reference to the federal legislation (aka, 7606), this is not a restrictive law, but permissive law where there is a provision removing the penalties on an institution of higher education or a State department of agriculture for academic research. This is not restricting others from participating in growing hemp. If “others” were prevented from growing hemp, the law would state the restriction, there are none.

7 U.S. Code § 5940 – Legitimacy of industrial hemp research

(a) In general Notwithstanding the Controlled Substances Act (21 U.S.C. 801 et seq.), the Safe and Drug-Free Schools and Communities Act (20 U.S.C. 7101 et seq.), chapter 81 of title 41, or any other Federal law, an institution of higher education (as defined in section 1001 of title 20) or a State department of agriculture may grow or cultivate industrial hemp if—

(1) the industrial hemp is grown or cultivated for purposes of research conducted under an agricultural pilot program or other agricultural or academic research; and

(2) the growing or cultivating of industrial hemp is allowed under the laws of the State in which such institution of higher education or State department of agriculture is located and such research occurs.

The federal bill is permitting the educational institutions to participate in growing hemp and its function is to protect them from the penalties of the Controlled Substances Act (21 U.S.C. 801 et seq.), the Safe and Drug-Free Schools and Communities Act (20 U.S.C. 7101 et seq.), chapter 81 of title 41, or any other Federal law.

For example, 7606 does not prevent a citizen from growing their own for horticultural use, because, for example, it would contradict the SCND of 1972.

In the 1972 writings of David Lyons in “Logic and Coercion in Bentham ’s Theory of Law” Bentham’s imperational theory of permissive and restrictive law. Rather than maintaining that legal powers and related phenomena reduce simply to restrictions, it recognizes that they may be analyzed in terms of permissions as well.

Bentham believed, that laws should always be judged by their tendency to promote human happiness or welfare-in short, by their “utilities.” He saw that their beneficial consequences had to be weighed against the harm they could cause.