Hemp: Industrial Hemp, Marijuana and the New American Apartheid

Story by David Bush

     People often say that “industrial hemp is different from marijuana.”  But industrial hemp and marijuana are varieties of one and the same plant, called cannabis.
     The terms are nothing more than labels that describe different products made from the same plant.  Some sheep are bred for producing wool, while others are raised for mutton, and often for both purposes or neither.  Yet nobody would deny that the animals are all sheep, only used in different ways.  In like manner, what distinguishes industrial hemp from marijuana is commercial breeding.  Once we understand and accept that ultimately the only distinction between industrial hemp and marijuana is choice of use, then true Cannabis legal reform becomes possible.
     Efforts abound to classify industrial hemp and marijuana plants as biologically separate and distinct to regulate them differently and to shape industries around those differences. But regulating industrial hemp and marijuana based on the false notion that they are inherently different plants obscures the essential truth that what they are is dictated by how they are used.
     Cultivation and processing of cannabis, otherwise known as hemp, once was a major industry in the US. Hemp supplied the US Navy with sails and cordage. Hemp fiber made paper and textiles. The seeds were a source of food and oil, and medicinal products came from the leaves and flowers. In the prohibitionist hysteria of the early 20th century, coupled with the introduction in the English language of the word “marijuana” (originating as a slang term for varieties of hemp smoked by Mexican immigrants), the plant became viewed as a dangerous scourge to be eradicated with all deliberate speed. Congress effectively outlawed hemp beginning with the Marijuana Tax Act of 1937, followed a few decades later by the Controlled Substances Act of 1970.
     Therein lies the rub. Whether or not the fears of marijuana were rational, they related to a limited number of products made from cannabis, not to the plant itself.  But Congress opted to regulate and effectively ban the entire plant rather than selected products.  In doing so, it wiped out entire industries that had nothing to do with perceived harmful drugs.
     There is an inexorable movement in this country to divide cannabis into categories, based on arbitrary concentrations or ratios of psychoactive tetrahydrocannabinol (THC) and non-psychoactive cannabidiol (CBD) found in the plant tissue.  Under this scheme, “industrial hemp” generally is defined as varieties of the plant at or below some threshold of THC, typically 0.3 percent by dry weight; or some ratio of THC to CBD, typically less than one.  Any plant of higher concentration of THC or greater ratios of THC to CBD is classified as “marijuana.”  The frightening thing about this classification is not so much that a distinction is made, but that people tend to believe that it really means something. 
     This country is on the verge of creating a new American apartheid for a plant.  It confronts an ideology of pseudoscience hardly less insidious than that which convinced slave owners in the old South that lighter skin was a badge of moral and intellectual superiority.  People have always outwardly appeared blacker or whiter,  but race is a distinction without a difference.  As Martin Luther King taught us, what matters is not the color of skin but the content of character.  And in the cannabis industry, what should count is not what one grows, but what one does with what one grows.
     A rational system of cannabis regulation in this country should focus on products, not plants.  Cannabis that grows tall and straight might be very useful for drawing fibers for industrial products and textiles.  Likewise, cannabis that matures early with relatively little vegetative growth and produces flavorful seeds rich in omega-3 fatty acids might be a useful source of food.  And cannabis that matures early and produces an abundance of buds rich in cannabinoids (including but not necessarily limited to THC and CBD), terpenes and other compounds might find application in the manufacture of medicinals, dietary supplements and other goods.  Whether the particular chemistry of the particular variety of source plant informs whether it is more or less similar to a race called “industrial hemp” or “marijuana” is beside the point. My tT-shirt is made with hemp because it was spun with cannabis fiber, not because the plant the fiber came from was low in THC.
     In my home state of Colorado, the artificial distinction between industrial hemp and marijuana has created fault lines that ought not to exist.  One who raises cannabis to make textiles is in good stead as long as the concentration of THC in the crop tests at 0.3 percent lower below; but if test results indicate that the THC is 0.4 percent, the crop must be destroyed—even though the stalk is still full of valuable baste and hurd.  The waste is self-evident.  Cannabis raised in the marijuana regulatory environment could never be used to make paper, as the non-drug parts of the marijuana plant areconsidered waste products.  Under the law, marijuana waste must be ground up, mixed with dirt and thrown in a landfill—even if the grower produced tons of valuable pulp.  Manufacturers of marijuana food products operate in a tightly regulated environment where they may place their products for sale only in licensed medical or retail marijuana stores.  Yet the same foods or dietary supplements with the same balance of chemical constituents could and are currently being manufactured using extracts derived from industrial hemp, which may freely be sold to any vendor in the state who wishes to carry them.  Identical products are treated entirely differently, depending on chemical properties of the source plants that may have little to do with what could be made from them.
     Colorado is not exceptional when it comes to illogical policies and unfair regulations.  In 2014, Congress passed legislation colloquially known as the “Farm Bill,” which for the first time authorized the cultivation of industrial hemp (defined using the 0.3 percent THC threshold) for limited purposes of research and development.  Certain special interests have parlayed the Farm Bill into a means to secure for commercial growers of industrial hemp access to products and markets unavailable to commercial growers of marijuana.  They have done so despite the fact that any variety of cannabis has the potential to provide many equally useful and valuable materials, independent of the capacity to produce psychoactive drugs.  Currently pending in Congress is the proposed “Charlotte’s Web Medical Access Act,” which would give producers of industrial hemp only, the exclusive right to make CBD products, even though the same products could just as readily be produced from a plant legally classified as marijuana.
     Creating a new American apartheid in the cannabis market may not be as insidious and offensive as this nation’s history of racial discrimination.  But one ought to avoid such a result for much the same reasons: It is illogical, unfair and counterproductive. 
     True cannabis legal reform in this country should free the plant entirely—not just some, but all of them.  Our society might choose to undertake selective regulation of a limited number of products made from cannabis plants.  However, whether and to what extent certain products are regulated ought to be a matter of informed policy choice, unconstrained by false ideology.  Decisions about what cannabis products might be made and placed in the market—without regard to the nature of the source plant—should be based on science, technology, production economics, consumer safety and demand.  The debate is worth having.
     David B. Bush is the managing member of David B. Bush, L.L.C., dba David’sLaw, a business law practice dedicated to furthering the successful development of industrial hemp in Colorado and throughout the United States.  Visit his web page at www.davidlawcolorado.com and reach him by email at bush@davidlawcolorado.com.