Can Industrial Hemp Save Kentucky? Susan David Dwyer University of Kentucky
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Kentucky Law Journal Volume 86 | Issue 4 Article 12 1998 The eH mp Controversy: Can Industrial Hemp Save Kentucky? Susan David Dwyer University of Kentucky Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Agriculture Law Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Dwyer, Susan David (1998) "The eH mp Controversy: Can Industrial Hemp Save Kentucky?," Kentucky Law Journal: Vol. 86 : Iss. 4 , Article 12. Available at: https://uknowledge.uky.edu/klj/vol86/iss4/12 This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. The Hemp Controversy: Can Industrial Hemp Save Kentucky?* BY SUSAN DAVID DWYER** INTRODUCTION n the wake of litigation over the responsibility of tobacco companies for harm caused by cigarettes and in the face of increased public hostility toward smoking, Kentucky's tobacco farmers are apprehensive about the future.' While not all growers depend entirely on tobacco for their income, the potential shrinking of the tobacco market will have serious ramifications throughout the state.2 Some farmers are turning to organic vegetable farming, or to com and soybeans as alternative crops,3 but the potential of industrial hemp as an option remains uncertain. Touted by many as the answer to the tobacco farmer's quandary,4 industrial hemp remains an illegal crop under both federal' and state6 law Furthermore, it is *The topic ofthis Note was originally suggested by Della M. Justice, a member of the 1996-97 editorial board of the Kentucky Law Journal. J.D. expected 1999, University of Kentucky See, e.g., Chad Carlton & Bill Estep, Growing Uncertainty: Big Farmers, TenantsFace GreatestRisk,LEXINGTON HERALD-LEADER (Lexington, Ky.), Sept. 21, 1997, at Al. For an in-depth investigation into the current concerns of Kentucky's tobacco farmers about their future, see Tobacco Blues (Caf6 Sisters Productions 1997) (broadcast on KET, The Kentucky Network, Feb. 10, 1998). Some Kentucky farmers have filed suit in a Lexington, Kentucky federal district court demanding the right to grow and cultivate industrial hemp. See Joe Ward, Kentucky Farmers Will Sue for Right to Grow Hemp, THE COURIER-JOURNAL (Louisville, Ky.), May 15, 1998, at 1D. 2See Carlton & Estep, supra note 1. 3 See Chad Carlton, Family Turning to Other Crops for Part of Income, LEXINGTON HERALD-LEADER (Lexington, Ky.), Sept. 21, 1997, at A10; Tobacco Blues, supra note 1. 'See, e.g., Allen G. Breed, From Food to Fashion,Hemp Is n Demand, THE COURIER-JOURNAL (Louisville, Ky.), May 20, 1997, at 1E. ' See Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 801-971 (1994). 6 See KY. REV STAT. ANN. [hereinafter K.R.S.] § 218A.010-.350 (Michie 1997). 1143 1144 KENTUCKY LAW JOURNAL [VOL. 86 not entirely clear how large a market exists for industrial hemp and whether it would be a profitable crop for Kentucky farmers.7 This Note attempts to discern whether current laws should be changed to allow the cultivation of industrial hemp in Kentucky It begins with a discussion of the agronomy of industrial hemp and its relationship to marijuana m Part .8Part III addresses the environmental benefits that hemp offers. The current state of world markets and production of industrial hemp, along with estimates of profitability of Kentucky-grown hemp, is detailed in 0 Part 11. Part IV' explores the long history of industrial hemp globally, in the United States, and in Kentucky where it was a staple crop for many years. 2 The current and potentially changing legal status of industrial hemp at the federal level, m Kentucky, and m other states is offered in Parts V, VI, and VIIi 3 Part VUIM addresses the enforcement and public perception problems posedby legalizing industrial hemp given its ties to marijuana. Part IX concludes with a proposal for Kentucky as it explores possible futures for industrial hemp. I. AGRICULTURE OF INDUSTRIAL HEMP In botamcal terms, hemp is known as Cannabissativa L. It is widely considered the only species in the Cannabisgenus, though many subspecies or varieties have been identified. 5 Some of these subspecies are hemp plants ' See generally Valerie L. Vantreese, Industrial Hemp: Global Markets and Prices (1997) (unpublished manuscript, University of Kentucky); see also infra Part IV According to Andy Graves, president of the Kentucky Hemp Growers Cooperative Association, "hemp crops could net Kentucky farmers $300 to $350 an acre- somewhat less than tobacco, butwell ahead of corn and soybeans." Ward, supra note 1. SSee infra notes 15-56 and accompanying text. 9 See infra notes 57-76 and accompanying text. SSee infra notes 77-96 and accompanying text. " See infra notes 97-142 and accompanying text. 12 SeeJames F Hopkins, A History of the Hemp Industry in Kentucky (1951). "Hemp, grown by some of the earliest white settlers in the area, became one of the few commodities which might be depended upon for a cash income." Id. at 4. "3See infra notes 143-78, 179-222, 223-32, respectively, and accompanying text. 14 See infra notes 233-47 and accompanying text. 15 See JAMES M. DEMPSEY, FIBER CROPS 54-55 (1975); R.H. KIRBY, VEGETABLE FIBRES 46 (1963). Botanists originally posited that there were two species within the Cannabisgenus: Cannabissativa, which produced fiber, and Cannabisindica, which was the source of the narcotic. Today, botanists agree that 1997-98] THE HEMP CONTROVERSY 1145 grown to produce narcotics, including marijuana, 6while others produce fiber 1 7 or seed that can be used for industrial purposes. The narcotic effect of marijuana is a result of the tetrahydrocannabmols ("THC") m cannabis,"8 the most hallucmogemc of which is delta-9-THC. 19 Marijuana has a higher THC content than industrial hemp, and nations that currently allow the cultivation of industrial hemp distinguish between hemp and marijuana on the basis of THC measurements. 0 The narcotic effects of hemp also can be measured as a ratio of THC content to non-psychoactive cannabmol ("CBD").31 Low ratios, resulting from high levels of CBD, indicate that the plant will not produce a narcotic effect. In short, cannabis plants with elevated levels of CBD are useless for smoking. 2 Hemp is an adaptable and versatile plant, and its nature- whether it tends to have more THC or produce more fiber- and appearance depend on climate and cultivation techmques as well as the variety of seed used.?3 Hemp grown m temperate regions and relatively moist soil conditions produces more fiber.24 Hemp plants intended for fiber production are planted close together, which encourages tall, fibrous stalks and few leaves.' Hemp grown in hot Cannabissativa is the only species. The plant that was known as Cannabis indica is now recognized as a subspecies or variety. See LESTER GRINSPOON, MARIHUANA RECONSIDERED 35 (1971). '6 See DEMPSEY, supra note 15, at 47-49. '7 See KIRBY, supranote 15, at 46-47 18 For a discussion of the investigation into marijuana's chemistry, see GRINSPOON, supranote 15, at 42-54. '9See David P West, Fiber Wars: The Extinction ofKentucky Hemp, in HEMP TODAY 5, 45 (Ed Rosenthal ed., 1994) (citing a 1975 study of feral cannabis in Kansas). 20For example, the European Union (the economic block of European nations) allows the cultivation of hemp with 0.3% THC or less. Others have suggested that 0.5% would be an acceptable threshold. See id. at 43. 21 For example, 0.16% CBD produces a headache rather than a narcotic effect in anyone attempting to smoke hemp. See id. " See id. '3 See id. As for the seed varieties, "[i]n 1991, Dutch hemp breeders released a hemp variety, 'with virtually no narcotic potential.' They said it was easy to select changes in THC concentration and that THC and fiber are under independent genetic control. 'Fiber content and THC are not interrelated.' Furthermore, they demonstrated that recognized fiber and herbal types clearly separate for percent THC." Id. at 34 (quoting E.P.M. DeMeijer et al., Characterizationof Cannabis Accessions with Respect to OtherPlant Characters.62 EUPHYTICA 187 (1992)). 24 See id. I See Andrew R. Graves, Legalize IndustrialHemp?, THE COURIER-JOURNAL (Louisville, Ky.), Feb. 16, 1997, at 7A (stating that hemp seed intended to produce fiber is planted four inches apart). Other sources note that seeding rates can vary 1146 KENTUCKY LAW JOURNAL [VOL. 86 and/or dry climates tends to produce more resin, which is the most potent source of the plant's narcotic.2s Hemp grown to produce narcotics is also planted farther apart than that grown for fiber, which encourages more leaves and flowers that produce the resin.27 Hemp plants are usually dioecious - either male or female.2 Both sexes germinate and grow at much the same rate.29 The two differ little in appearance except for their flowers,30 and ifharvested at the proper time, they produce fiber of virtually identical quality 31If grown for fiber and seed, the female plants are harvested several weeks after the male plants, which allows time for the seed to ripen.32 Monoecious strams, v. i both male and female depending on the type of fiber the farmer wishes to produce and location. See DEMPSEY, supranote 15, at 65-66; KIRBY, supranote 15, at 51. Ideally, such close seeding produces very slender plants about six feet tall. However, where hemp is planted for seed production, another industrial use, rather than fiber production, plants can reach 16 feet.