Speaking of Stopping the War On Drugs

Yesterday, two farmers filed suit in the federal district court of North Dakota. They are seeking a declaratory judgment against the Drug Enforcement Administration (DEA) that would allow them to cultivate hemp, a profitable crop with many legal uses.

The DEA, however, is likely to strongly defend the suit. After all, ever since its very inception, the DEA has feared that if it allows “industrial” hemp to be produced, the result will be to seriously undermine its war on drugs, including marijuana. As I will explain, its position has led to a bizarre and, some argue, utterly irrational situation: It makes little sense for the War on Drugs to also include a War on Hemp.

A case decided last year by the U.S. Court of Appeals for the Eighth Circuit illustrates some of this irrationality, but doesn’t give the full picture. In this column, I’ll provide a chronology of the DEA’s war on this plant and its champions; discuss a set of legal questions that, in my view, complicates the agency’s war plans; and finally, offer a prediction of hemp’s regulatory future.

The Cannabis Conundrum: A Controlled Substance with Highly Beneficial Applications

The Controlled Substances Act (CSA) prohibits the manufacture, distribution, dispensation, or possession of any listed “controlled substance,” except as authorized by the CSA or the DEA. Marijuana is included, and even its medicinal use remains flatly prohibited. In 2006, the Supreme Court entertained a Commerce Clause challenge to that latter prohibition, in Gonzales v. Raich, but the challengers lost.

This unbending legal regime is a great shame, because the marijuana plant is a botanical superstar. It generates a portfolio of raw materials for products like rope and canvas (which reportedly covered the Conestoga wagons of the Nineteenth Century West), oil, paper, and cellulose.

This is no small matter today: Compared to most tree species, as the U.S. Department of Agriculture has acknowledged, hemp is several times more efficient for producing paper and fiber, is much less dependent upon pesticides and herbicides than crops like cotton, and creates a seed oil high in essential fatty acids. The oil alone has countless applications. Indeed, the U.S. Department of Agriculture even ordered cannabis production during World War II in its “Hemp for Victory” program.

So if you’re looking for an “assault on reason,” a flat ban on this plant–given its multitude of beneficial uses, most of which are fossil fuel-reducing and organic in every sense–certainly fits the bill.

Cannabis’s Early History: The 1937 Act

Of course, the issue with cannabis sativa is that some of its varieties are grown to maximize the creation of tetrahydrocannabinols (THC). THC is a psychoactive compound, and, unfortunately, the THC producer is the same genus and species as the botanical wunderkind. They are just different parts of the same plant or, in some instances, different varietals. Unfortunately, throughout American history, the U.S. government has too often acted as if these two features of the plant are inseparable – and that has led to some absurd results.

The cannabis plant was among the first drugs the U.S. Government tried to eradicate in this country, beginning in 1937 with the Marihuana Tax Act. The 1937 law was preceded only by the Harrison Narcotics Tax Act of 1914, which taxed opiates and cocaine, and, of course, the Eighteenth Amendment, imposing Prohibition.

While the 1937 law was formally a tax, it might as well have been a ban, for it made the cost of the plant prohibitively high, and thus effectively prohibited the growing of varieties and foliage to maximize THC (“pot”). Nevertheless, the growing of “hemp”–which has THC concentrations too low to move the needle–was taxed hardly at all.

A Senate Report on the bill made this point quite clear:

“The testimony before the committee showed definitely that neither the mature stalk of the hemp plant nor the fiber produced therefrom contains any drug, narcotic, or harmful property whatsoever and because of that fact the fiber and mature stalk have been exempted from the operation of the law.”