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|Letter to Bush Administration
RCA and a coalition of groups petitioned the Department of Justice to allow the commercial cultivation of industrial hemp. The petition was denied under President Clinton's administration. RCA resubmitted the petition when President Bush took office. Bush's administration has also rejected the petition.
March 6, 2001
Hon. Mitchell E. Daniels, Jr.
Hon. Ann M. Veneman
Hon. Donnie R. Marshall
Dear Mr. Daniels, Secretary Veneman and Administrator Marshall:
In March 1998, our coalition of farmers, businesses, environmental groups and others petitioned the Clinton Administration for initiation of rule making proceedings at the U.S. Department of Agriculture (USDA) and the U.S. Drug Enforcement Administration (DEA) that would lead to the enactment of regulations permitting the domestic production of a crop known as industrial hemp. We believe that production of industrial hemp, which is now grown all over the world -- from Canada to Western Europe, India to China -- would aid our farmers and enterprises, boost our economy, improve our trade balance, help protect our environment, and conserve our precious natural resources.
In the final weeks of the Clinton Administration, our petition was denied. We hereby request that the Bush Administration take a fresh look at this issue, meet with members of our coalition, and reconsider our petition, or join with us in supporting legislation, to allow American farmers and businesses to cultivate industrial hemp.
We carefully crafted our proposed rule to balance the needs of potential U.S. industrial hemp producers with the requirements of U.S. law enforcement agencies. Some law enforcement officials have opposed industrial hemp cultivation, because the crop belongs to the same species as the plant commonly known as marijuana. We informed the Clinton Administration that we stood ready to work with it, with the DEA, USDA, the Congress, and other interested parties to further refine the rules to address law enforcement concerns. Because our proposal would require coordinated efforts by USDA and DEA, and because of the importance of this issue for many Americans, we urged the Clinton Administration to take a strong leadership role in advancing this process.
The Clinton Administration did virtually nothing in response to our request for dialogue, and, on December 19, 2000, the DEA issued a relatively brief opinion denying our petition. In our view, the Clinton Administration took an extremely narrow and short-sighted approach to our proposal and to its own authority, deferring to a cramped reading by the DEA of the relevant statutes, rather than considering the issue in the light of the broader national interest.
Attached are our 1998 letter to OMB along with our two administrative petitions, one filed with USDA and the other with DEA, the single memorandum we filed in support of both petitions, our proposed USDA and DEA rules, and the DEA’s letter denying our petition.
We believe that the United States economy, environment, and national security would greatly benefit from the re-introduction of industrial hemp in domestic agriculture and manufacturing. Historically, hemp has been an important American crop, from the time George Washington and Thomas Jefferson cultivated it, to the days when hemp material was used in covered wagons heading west, to the USDA "Hemp for Victory" campaign to meet military needs in World War II.
Industrial hemp can be used to make fabrics, paper (including the paper on which this letter is printed), building materials, paints, foods, oils, and many other consumer and industrial products. Because cultivation and processing of industrial hemp requires little or no use of pesticides, herbicides, or fungicides, introducing the crop as a substitute for other crops will improve our environment. And, use of fast-growing, durable industrial hemp for making paper products will reduce the need to deplete our forests. Industrial hemp may also prove a useful substitute for petroleum products in a wide range of applications -- from fuels to plastics -- thus further reducing pollution, as well as conserving national resources. Indication of the value of industrial hemp is found in a 1994 Executive Order listing hemp as a strategic crop essential to national security. Exec. Order No. 12919, 59 Fed. Reg. 29,525 (June 3, 1994).
Today there are numerous indications of the economic promise of industrial hemp. One of the petitioners, Interface, Inc., a $1.2 billion carpet and tile business, has researched and tested hemp as a fabric for its carpets and would be interested in using domestically-cultivated hemp in its production. Another key market for industrial hemp is in biocomposites. One industry study estimates that the North American market for natural fiber biocomposites, for uses such as automative and building products, will grow from $150 million market in 2000 to $1.4 billion in 2005. Johnson Controls, Inc., today is producing automobile door panels that are 25 percent industrial hemp in its Holland, Michigan plant.
Indeed, prominent U.S. and foreign businesses are already selling U.S. consumers a range of products made from hemp grown abroad. Why should we import hemp for these products in larger and larger amounts when American farmers and businesses are ready and willing to grow the crop themselves?
Other nations around the world permit industrial hemp growth and are fast developing cultivation and processing methods. Close U.S. allies like Canada, the United Kingdom, and Germany -- nations committed to enforcing laws against dangerous drugs -- have weighed the pros and cons and decided to proceed with industrial hemp cultivation.
Under the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1292 (1970) (the Controlled Substances Act), industrial hemp, because it is a variety of the plant Cannabis Sativa, is treated as a Schedule I controlled substance, the most restricted category under the law. As a result, hemp cultivation is outlawed in the United States. Petitioners believe, and we argue in our petition, that such classification was never the intent of Congress. Moreover, treating industrial hemp as indistinguishable from marijuana, as DEA presently does, is not consistent with international treaty provisions or with the laws of many other countries.
The Controlled Substance Act and regulations enacted thereunder permit the Administrator of the DEA, as agent for the Attorney General, to transfer a substance between schedules or to remove a substance from the schedules entirely if the substance does not meet the requirements for inclusion in any schedule. See 21 U.S.C. sec. 811(a); 28 C.F.R. sec. 0.100(b); 21 C.F.R. sec. 1308.43(d). Petitioners believe that industrial hemp is not properly classifiable in any of the five schedule levels established by the Act. As we indicate in our petition, scientific evidence shows that it is extremely difficult to obtain any psychoactive effect at all from industrial hemp. Therefore, the crop has little or no potential for abuse as a drug, and certainly not the high potential for abuse required for placement in Schedule I. See 21 U.S.C. sec. 812(b)(1). At the same time, industrial hemp does not belong in any other schedule because it does not have "a currently accepted medical use in treatment in the United States." See 21 U.S.C. sec. 812(b). The Act's classifications simply have no relevance to industrial hemp, because industrial hemp is not a drug.
Accordingly, the petitioners have asked DEA to adopt regulations permitting industrial hemp cultivation. However, because petitioners are mindful of the view held by many law enforcement officials that unchecked commerce in industrial hemp would harm efforts to prevent traffic in marijuana, petitioners have proposed a system that would accommodate both these law enforcement concerns and the interests of U.S. businesses and farmers in growing industrial hemp.
Under the regulations we propose, persons wishing to produce industrial hemp -- defined as Cannabis sativa with a one percent or less concentration of the psychoactive ingredient delta-9 tetrahydrocannabinol (THC) -- in the United States would have to obtain a license from the USDA, grow their crops only from USDA-certified seeds, and consent to USDA inspections of industrial hemp fields and processing facilities. This license system would share certain characteristics with the current DEA system of registration for manufacturers of controlled substances but would, because of essential distinctions between hemp cultivation and production of other controlled substances, differ in several respects. Most fundamentally, administration of the hemp program would be under the control of USDA, rather than DEA, owing to USDA's greater experience in working with crops and farmers.
Under the proposed licensing system, which would be entirely consistent with the provisions of the Controlled Substances Act, only licensed persons would be permitted to possess industrial hemp, so unlicensed persons would not be able to attempt to avoid the strictures of the Act by claiming that marijuana in their possession was actually industrial hemp. At the same time, law enforcement fears about growers hiding marijuana plants in industrial hemp fields would be alleviated; even if one or more licensed industrial hemp growers were disposed to violate the law and cultivate marijuana, an industrial hemp field subject to federal government inspection would be absolutely the most risky place to grow it. Moreover, because of the effects of cross-pollination, an industrial hemp field would also be a poor place to grow marijuana in terms of maintaining the potency of the drug. Thus nothing in the proposed rules would enhance the ability of anyone to traffic in marijuana or weaken the ability of law enforcement officials to detect violations and prosecute violators of marijuana prohibitions.
The DEA’s letter denying our petition relied primarily on the claim that our proposed rules would constitute a delegation of power from the Attorney General to the Secretary of Agriculture and the proposition, citing the Controlled Substances Act at 21 U.S.C. sec. 871(a), that "[t]he Attorney General may not delegate any of her functions under the CSA to anyone other than an office or employee of the Department of Justice." Letter of December 19, 2000, at 3. In fact, as our petition notes, the Attorney General and the DEA have authority under the CSA to remove industrial hemp from the Act’s controls entirely, implying a subsidiary authority to cede some aspects of control over hemp to another agency. Moreover, the provision of the CSA that DEA cites does not, in fact, expressly bar the Attorney General from delegating authority to another member of the President’s Cabinet; instead, it reads, "The Attorney General may delegate any of his functions under this subchapter to any officer or employee of the Department of Justice." 21 U.S.C. 871(a). As we note in our petition, the Federal Seed Act and regulations enacted thereunder already provide USDA with authority to inspect and regulate hemp seeds. Finally, if any doubt remained about DEA’s authority to allow USDA to supervise hemp cultivation, it could be erased by a simple piece of legislation endorsed by this Administration.
Although DEA’s letter contended that no further reason was required to deny our petition, it offered a second argument for denial: that petitioners were attempting to "creat[e] a hypothetical substance" based on "an arbitrary percentage of a controlled substance." Letter at 3. DEA’s letter states that the CSA’s scheduling procedures were intended to be applied "where a company is seeking to market a new drug" and such company will have conducted its own clinical studies of the drug’s safety and effectiveness. Letter at 4. But nothing in the statute or regulations indicates that only drug companies, or only petitioners who have funded their own clinical trials, are permitted to petition for a change in the status of a controlled substance. Clinical trials are of little relevance to our petition because industrial hemp has no meaningful psychoactive effect or medical use, and our coalition members have no interest or intention in marketing industrial hemp as a drug.
In short, although DEA’s letter implies that its hands are tied, nothing in the applicable statutes or regulations bars the DEA or USDA from granting our petitions. DEA’s mission is drug enforcement, and we can understand why it might want to oppose any change in the law that could potentially complicate its tasks. But many things complicate its enforcement tasks: roofs and walls on buildings, for example. We believe that, with respect to industrial hemp, there is no genuine danger to drug enforcement from our proposal, and a more rational balance is in order -- as has been achieved by other nations of the world -- to promote other compelling national goals, such as economic growth and environmental protection.
Members of our coalition would like to meet with each of you or your staffs to discuss our request that the Administration reconsider our petitions or consider supporting comparable legislation. I will contact each of you shortly.
Thank you in advance for your attention to this matter.
Leda Gawdiak Huta
Petitioners on the March 1998 Petition: