BROADENING THE DEFINITION OF CANNABIS: AN ARGUMENT FOR SPECIATION INCLUDING INDICA AND SATIVA Winston C. Throgmorton* I. INTRODUCTION On July 24, 2014, the Illinois Department of Agriculture adopted administrative rules implementing and governing the Illinois Compassionate Medical Cannabis Pilot Program Act.1 Specifically, the Department was charged with control of cultivation centers management and operation.2 Cultivation Centers are facilities operated to perform those necessary activities to provide “usable medical cannabis.”3 The Cannabis Control Act4 defines cannabis as: [M]arihuana, hashish and other substances which are identified as including any parts of the plant Cannabis Sativa, whether growing or not; the seeds thereof, the resin extracted from any part of such plant; and any compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin, including tetrahydrocannabinol (THC) and all other cannabinol derivatives, including its naturally occurring or synthetically produced ingredients, whether produced directly or indirectly by extraction, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of such plant which is incapable of germination.5 * Winston C. Throgmorton has a general practice law firm located at 304 N Monroe St, Marion, IL 62959. 1. 410 ILL. COMP. STAT. 130 (2018). 2. 410 ILL. COMP. STAT. 130/15 (2018). 3. 410 ILL. COMP. STAT. 130/10(e) (2018). 4. 720 ILL. COMP. STAT. 550 (2018). 5. 720 ILL. COMP. STAT. 550/3(a) (2018). 669 670 Southern Illinois University Law Journal [Vol. 42 The Illinois Compassionate Medical Cannabis Pilot Program Act defines cannabis as “the meaning given that term in Section 3 of the Cannabis Control Act.”6 However, the Illinois Department of Agriculture, in enacting their administrative rules governing the control of cultivation centers management and operation, adopted the following definition: “Cannabis” means marihuana, hashish and other substances which are identified as including any parts of the plant Cannabis sativa and including derivatives or subspecies, such as Indica, of all strains of cannabis, whether growing or not; the seeds thereof, the resin extracted from any part of such plant; and any compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin, including tetrahydrocannabinol (THC) and all other cannabinol derivatives, including its naturally occurring or synthetically produced ingredients, whether produced directly or indirectly by extraction, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of such plant which is incapable of germination.7 Obviously, the Department of Agriculture has broadened the definition by including Cannabis Indica, referring to it as a subspecies of Cannabis Sativa.8 And therein lies the rub. Is Cannabis Indica a sub species of Cannabis Sativa or are Indica and Sativa both species of the genus Cannabis?9 They both contain tetrhydrocannabinol (THC), Cannabinol (CBN), and cannabidiol (CBD).10 They are both used to treat debilitating medical conditions.11 However, they both exhibit different biological and 6. 410 ILL. COMP. STAT. 130/10(b) (2018). 7. 68 ILL. ADM. CODE tit. 68, § 1290.10 (2014) (emphasis added). 8. Id. 9. See Ernest Small & Arthur Cronquist, A Practical and Natural Taxonomy for Cannabis, 25 TAXON 405 (1976); But see Richard Evans Schultes et al., Cannabis: An Example in Taxonomic Neglect, Botanical Museum Leaflets, 23 HARV. U. BOTANICAL MUSEUM LEAFLETS 337 (1974). 10. Joseph Dylan Summer, Note: Patenting Marijuana Strains: Baking Up Patent Protection for Growers in The Legal Fog of this Budding Industry, 23 J. INTELL. PROP. L. 169, 177 (2015); Karl W. Hillig & Paul G. Mahlberg, A Chemotaxonomic Analysis of Cannaboinoid Variation in Cannabis (Cannabacea), 91 AM. J. OF BOTANY 966 (2004). 11. Qualifying Conditions for a Medical Marijuana Card by State, LEAFLY (Oct. 30, 2017), https://www.leafly.com/news/health/qualifying-conditions-for-medical-marijuana-by-state; Marijuana, MAYO CLINIC (Oct. 24, 2017), https://www.mayoclinic.org/drugs-supplements- marijuana/art-20364974; Medical Marijuana, MAYO CLINIC (Oct. 14, 2016), 2018] Broadening the Definition of Cannabis 671 chemical properties, exude different smells, and offer different narcotic benefits.12 The differences are distinct enough for some biologists and taxonomists to categorize Sativa and Indica as separate species of the genus Cannabis.13 What empirical evidence did the Department of Agriculture have in broadening the definition to include Indica as a subspecies of Sativa? While the debate on Cannabis may seem limited to biologists and taxonomists,14 the answer as to whether one or more species of Cannabis exists has important legal ramifications.15 Although the plain meaning of Illinois’s statute shows that the prohibition against possessing, selling, or using cannabis is limited to Cannabis Sativa,16 defendants found with substances testing positive for cannabis are punished regardless of what the substance actually is.17 Inconclusive empirical evidence derived from examining physical characteristics, tissue samples, and chemical tests have resulted in this problematic state of affairs.18 A better source of empirical evidence is now available with DNA evidence, which can conclusively determine whether Indica is a separate species from Sativa.19 Importantly, a finding that Indica is a separate species from Sativa would provide defendants with a revived and convincing argument that the State’s prohibitions do not apply to those who are not conclusively found to be in possession of Cannabis Sativa.20 II. ARGUMENT IN SUPPORT OF INDICA AS SEPARATE SPECIES OF GENUS CANNABIS The roots of the debate go back over two hundred years to the work of Carl Linnaeus, a Swedish botanist considered the father of modern https://www.mayoclinic.org/healthy-lifestyle/consumer-health/in-depth/medical-marijuana/art- 20137855. 12. See generally Bailey Rahn, Sativa vs. Indica vs. Hybrid: What’s the Difference Between Cannabis Types?, LEAFLY (Jan. 26, 2018), https://www.leafly.com/news/cannabis-101/sativa-indica-and- hybrid-differences-between-cannabis-types; Anna Wilcox, The Easiest Ways To Differentiate Sativa & Indica, HERB (May 29, 2016), https://herb.co/marijuana/news/differentiate-sativa-indica. 13. See generally Schultes, supra note 9. 14. Taxonomy is the study of the general principles of scientific classification: the description, identification, binomial nomenclature and classification of organisms. Taxonomy, MERRIAM- WEBSTER (Jan. 18, 2018), https://www.merriam-webster.com/dictionary/taxonomy. 15. David A. Lightfoot, Winston C. Throgmorton, & Colton Johnson, A Rapid Method for Cannabis Species Determination by DNA Sequencing, 2016 ATLAS J. OF BIOLOGY 292 (2016). 16. 720 ILL. COMP. STAT. 550/3(a) (2018). 17. See generally People v. Brisco, 78 Ill. App. 3d 282, 286, 397 N.E.2d 160, 163, 33 Ill. Dec. 827, 830 (1st Dist. 1979). 18. See generally Schultes, supra note 9. 19. See Lightfoot, Throgmorton & Johnson, supra note 15. 20. Id.; see generally Schultes, supra note 10. 672 Southern Illinois University Law Journal [Vol. 42 taxonomy.21 The genus Cannabis, as we know it today, was established by Linneaus, who named the genus after the ancient classical term for hemp.22 Cannabis Sativa is binomial23 name for a species within the larger genus Cannabis and was first identified and “published by Linnaeus in Species Plantarum in 1753.”24 Taxonomically speaking, Cannabis Sativa is described as being tall and Christmas tree shaped; its branching is moderate, being wide at the base with a single stem at the top; with long stem length between the thin long leaves which are pale to medium green; and the flowers are long, and sausage shaped with a sweet to spicy odor.25 Interestingly, the Linnaeus Society of London has preserved two specimens of Cannabis used by Linnaeus during his research, which provide an understanding of the plants he considered when developing the binomial.26 Although the specimens are taxonomically different and attributed to different geographic locations, Linnaeus considered them to represent one species: Cannabis Sativa.27 The classification as one species would have a lasting and profound impact on taxonomy and the law.28 Because Linneaus recognized only one species of cannabis (i.e. Cannabis Sativa), this first identification of the genus and its species Cannabis Sativa was critical because it established a paradigm that many biologists and taxonomists refused to reconsider for centuries.29 However, there were some early indicators that multiple species of cannabis existed.30 Thirty years later after Linneaus published Species Plantarum, in 1783, the French naturalist Jean-Baptiste Pierre Antoine de 21. See Marta Paterlini, There Shall Be Order. The Legacy of Linnaeus in the Age of Molecular Biology, 8 EMBO REPORTS 814 (2007); Who was Linnaeus?, THE LINNEAN SOC’Y OF LONDON, https://www.linnean.org/learning/who-was-linnaeus (last visited Jan. 24, 2018); THE BOTANY & CHEMISTRY OF CANNABIS, 20 (C.R.B. Joyce & S.H. Curry, eds., 1970). 22. Schultes, supra note 8, at 345 (“The name Cannabis (Greek Kávvabis, Kannabis) is a very ancient classical vernacular name for hemp . .”). 23. A binomial is a system of naming species “based on the combination of two Latin names denoting genus and species; similar to the way that a name and surname identify humans.” Paterlini, supra note 21. 24. Schultes, supra note 10, at 345; THE BOTANY & CHEMISTRY OF CANNABIS, supra note 21, at 23.