Can Industrial Hemp Save Louisiana?: A Study

Authored By: Karina Shareen

(kfshareen@gmail.com)

TOC

INTRODUCTION

Louisiana is one of the top producers of sugarcane, rice, cotton, corn, and soybeans.2 As a result, it has suffered two kinds of problems, both of which increasingly threaten Louisiana’s local economy and health. First, Louisiana is experiencing abnormal levels of soil deterioration, erosion, and compaction.3 Second, the over-spraying of fertilizer, pesticides, and other chemicals has polluted our waters, including creating a hypoxic zone4 in the Gulf of Mexico.5

Many solutions, such as sediment diversion and hydrologic restoration, have been proposed to address these environmental problems, but while all of these proposals may help to some extent, they are not the complete answer. Industrial hemp is an environmentally friendly crop that can be used as a cheaper, more sustainable alternative to current remediation6 solutions and techniques that may even benefit Louisiana’s economy and environment.

The United States has long used industrial hemp as a cash crop.7 This may come as a surprise to those who are under the false impression that industrial hemp is a euphemism for marijuana. Yes, hemp, which is also known as industrial cannabis, is a species of marijuana, but does not possess the same psychoactive properties as its cousin.8 Also unlike marijuana, industrial hemp is used in the production of a wide arrange of products, including food and beverages, cosmetics and personal care products, national supplements, fabrics and textiles, yarns and spun fibers, paper, construction and insulation materials, and other manufactured goods.9

What is less known about industrial hemp is that, in addition to its commercial uses, it can be used for various environmental purposes. It is a renewable resource that can help remove pollutants from soil through the process of phytoremediation and it can potentially help with coastal erosion and soil conditions for farming. It can even be used as a feedstock to produce biofuels.

Still, despite these commercial and environmental benefits, the cultivation of industrial hemp is still prohibited in Louisiana since the state has not designed nor received approval for a regulatory plan for the cultivation of the crop with the U.S. Department of Agriculture. This Note will argue that, especially because of industrial hemp’s distinctive capacity to alleviate the state’s particular environmental problems, Louisiana needs to follow in the federal government’s footsteps to repeal these legal restrictions as soon as possible.

Part I of this Note will offer a basic overview of industrial hemp: both its physical composition and its history in the United States. Part II will discuss industrial hemp’s commercial uses and environmental benefits. Part II will also highlight how legalizing industrial hemp can benefit Louisiana both financially and environmentally. Part III will describe how industrial hemp is currently regulated at both the federal and state levels. Part IV will explain why the opposition to industrial hemp cultivation is misguided and propose strategies for renewed legalization efforts.

I. WHAT IS INDUSTRIAL HEMP?

Industrial hemp played an interesting role in the early years of United States history. It is abundant as a wild plant in many localities in western Missouri, Iowa, and southern Minnesota, and it is often found as a roadside weed throughout the Middle West.10 The Puritans first brought hemp to New England to grow for fiber in the mid 15th century, and it later spread to Virginia, Pennsylvania, and other neighboring states.11 By 1775, the cultivation of industrial hemp reached the state of Kentucky, where it grew so well that a commercial industrial hemp industry was eventually developed.12

A. Is Industrial Hemp the Same as Marijuana?

Due to the common confusion between hemp and marijuana and the negative stigma surrounding the latter, it is important to use the full term ‘industrial hemp’ when discussing this particular strain of the cannabis plant. Botanically, industrial hemp and marijuana are from the same species of plant, Cannabis sativa. However, they are genetically distinct forms of cannabis that are distinguished by their use and chemical makeup as well as by their differing cultivation practices in production.13 In other words, industrial hemp is not the same as marijuana. Marijuana generally refers to the cultivated plant used to get “high,”14 while industrial hemp is cultivated for use in the production of a wide range of products.15

Industrial hemp is cultivated for use in the production of food and beverages, cosmetics and personal care products, national supplements, fabrics and textiles, yarns and spun fibers, paper, construction and insulation materials, and other manufactured goods.16 It is generally grown to process the seeds, fiber, and stalk into a variety of commercial products.17 Industrial hemp is typically skinnier and taller, with slender leaves concentrated at the top.18 It is one of the most environmentally friendly crops because it requires little or no pesticides, fertilizers, or water.19 It replenishes soil with nutrients and eliminates weeds.20

Marijuana, on the other hand, generally refers to the flowering tops and leaves of cannabis that have psychoactive properties.21 Marijuana is often grown for recreational purposes due to its high concentration for delta-9 THC22 so people can get “high.” Marijuana also tends to be broad- leaved, a tight bud, or look like a nugget with organd hairs.23

Though industrial hemp and marijuana are different forms of Cannabis sativa, the confusion between the two plants can be traced back to The Marihuana Tax Act of 1937 (MTA).24 The MTA was one of the first restrictions against Cannabis sativa that imposed a one-dollar tax on any activity dealing with Cannabis sativa through the purchase of a “marihuana stamp.”25 The MTA did not distinguish the different types of Cannabis sativa, nor did it even take into account the different concentration levels of THC a strand of the plant may hold in its creation of the definition.

In 1970, Congress adopted, word for word, the MTA’s definition of Cannabis sativa to be used in the Controlled Substances Act (CSA).26 The purpose of the CSA was to focus on the prohibition of drug use, specifically decreasing the consumption and use of illegal substances in America through enforcement via the U.S. Drug Enforcement Administration (DEA). As a result of the adoption of MTA’s definition of Cannabis sativa, under U.S. drug laws, all cannabis varieties, including hemp, are prohibited because they are classified as a Schedule I drug under the CSA.27

II. THE INDUSTRIAL HEMP INDUSTRY

Currently, there are more than thirty countries that allow the cultivation of industrial hemp as an agricultural commodity.28 As of 2018, there are no large-scale commercial productions of industrial hemp in the United States, which causes the U.S. market to depend on the importation of industrial hemp seeds and fibers from countries such as Canada, China, India, and Romania to be used for further manufacturing.29 In 2017, industrial hemp imports to the United States totaled approximately $67.3 million.30 Canada is one of the largest suppliers of U.S. hemp imports, accounting for about 90% of the value of annual imports, with China and Romania accounting for 3-5% and 2-4%, respectively, of annual industrial hemp imports.31

The U.S. government does not have official estimates for the sale of hemp-based products, but the Hemp Industries Association (HIA) reported a total of nearly $700 million in 2016 from retail sales of hemp-based products in the U.S.32 Looking at the millions of dollars being spent to import industrial hemp and hemp-based products, it is clear that there is a demand for industrial hemp and hemp-based products in the U.S. If industrial hemp is legalized in the U.S., it may boost the economy and help make the U.S. less reliant on foreign imports.

Furthermore, with industrial hemp’s flexible and diverse nature of possible commercial uses, once the strict restrictions imposed on the cultivation of industrial hemp are removed, the industrial hemp market may become huge. However, the profitability of industrial hemp cannot be predicted with a degree of certainty and can only be based on proforma or projected cost and return data due to the crop’s controlled-substance status in the U.S.33

A. Commercial Uses of Industrial Hemp

As mentioned earlier, industrial hemp can be used to manufacture a wide range of products.34 These commercial uses are widely documented in a range of feasibility and marketing studies conducted by researchers at the U.S. Department of Agriculture (USDA) and various land grant universities and state agencies.35 In the last few decades, the consumer industry has seen the development of hemp-based shampoos, facial creams, beers, jewelry, and even fashion.36 These hemp-based products are good or even excellent sources of magnesium, manganese, iron, zinc, and potassium as well as B1, B3, and B5 vitamins.

One concern about the use and consumption of industrial hemp-based products deals with whether consumers will be able to pass a urine drug test for marijuana. This should not be a factor when debating the legalization of industrial hemp because hemp seed contains virtually no THC or any other cannabinoids.38 A 2000 study funded by the Canadian government and coordinated by the Leson Environmental Consulting in Berkley, CA, concluded that extensive use of hemp oil will not cause positive urine tests for marijuana or even contribute significantly to the THC uptake rates required to produce a confirmed positive test.39

B. Environmental Benefits of Cultivating Industrial Hemp

1. Phytoremediation of Louisiana Superfund Sites

In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)40 in response to the dangers of uncontrolled releases or threatened releases of hazardous substances into the environment that may present an imminent or substantial danger to the public health or welfare.41 These contaminated locations that CERCLA regulates are generally referred to as “superfund sites.” Superfund sites are locations throughout the U.S. that the National Priorities List (NPL)42 has determined to be a national priority among the known or threatened releases of hazardous substances, pollutants, or contaminants.43 Currently, there are thirteen superfund sites that are located throughout eleven of the sixty-four parishes in Louisiana.44 It is clear that Louisiana may not be the most environmental friendly State due to the existence of these superfund sites, but industrial hemp may be able to help remediate Louisiana’s superfund sites through the process of phytoremediation.

Phytoremediation (also known as phytotechnology) is a subset of agronomy in which plants and soils are managed to solve environmental problems.45 Essentially, it is the process of directly using living green plants to remove the degradation or containment of contaminants in soils, sludges, sediments, surface water, and groundwater.46 Due to the photosynthesizing process in plants, phytoremediation serves as a low-cost, solar energy-driven cleanup technique that can effectively treat a wide variety of environmental contaminants.47 This technique can also cleanse metals, pesticides, solvents, explosives, crude oil, polyaromatic hydrocarbons, and landfill leachates.48

Under this concept, the plants would be grown in contaminated sites for a period of time in order to remove the pollutants from the soil under the process of phytoremediation. The plants would then extract the toxic substances from the soil and store them in their tissues, which would then later be harvested and processed to dispose of the toxic substances. If an individual planted industrial hemp at the location of Louisiana’s superfund sites, the roots of industrial hemp would absorb the contaminants and either store or transform them into a harmless substance.

Though the study and process of phytoremediation is still currently being developed, the idea of using industrial hemp for phytoremediation is not completely novel. One of the first studies about industrial hemp’s ability in soil restoration began in 1998, when Consolidated Growers and Processors (CGP), Phytotech, and Ukraine’s Institute of Bast Crops began to plant Cannabis sativa for the purpose of removing contaminants near the Chernobyl site.49 Though the researchers of the study did not publish or report their results of those field experiments, it is rumored that the test results were promising.50 The failure to publish or report the results of the 1998 study have caused scientists around the world to conduct their own research.

Before addressing the main issue of whether Louisiana should use industrial hemp to remediate Louisiana’s superfund sites, one must first determine whether phytoremediation of contaminated soils is even feasible using industrial hemp. One of the main problems with phytoremediation is finding a plant that has: (1) a high hyper tolerance to heavy metal; (2) a high biomass; and (3) deep penetrating roots.51 In addition, two main questions must be asked and constantly kept in mind when dealing with this subject: (1) What are the capabilities of using industrial hemp for phytoremediation and (2) assuming industrial hemp is feasible for phytoremediation, can the industrial hemp that was grown on contaminated soil be used as a raw material for other commercial products. Keeping these concerns in mind, industrial hemp may be a good candidate for soil phytoremediation because it is a tall plant with fast-growing roots that can reach up to one meter deep.52

The first case study that will be addressed comes from the International Journal of Industrial Crops and Products. In this case study, four German scientists examined industrial hemp’s capability to decontaminate heavy metal polluted soils, specifically focusing on the plant’s capabilities for phytoremediation and whether the hemp grown in contaminated soil can be harvested and used for other commercial purposes.53 The study compared the fiber contents and properties of industrial hemp stems that were planted in pots with a high concentration of heavy metal pollutants (Nickel, Lead, and Cadmium) and non-polluted pots by examining four different parts of the plant: seeds, leaves, fibers, and hurds.54

In determining industrial hemp’s capabilities of phytoremediation, the study compared industrial hemp to a well-studied hyperaccumulator55 called Alpine pennycress (T. caerulescens). In comparison to T. caerulescens., industrial hemp was outperformed 16-fold.56 Though industrial hemp may not serve as a better hyperaccumulator than T. caerulescens due to its slow absorption rate, industrial hemp grows better under natural conditions and does not require the extensive use of fertilizers or optimal growth conditions.57 T. caerulescens also cannot be used as a raw material for commercial purposes, unlike industrial hemp, which can be used for multiple purposes.58

The second question answered by this study was whether industrial hemp, grown on contaminated soil, could be used as a raw material for other commercial products. The study concluded that hemp seeds or leaves could not be used for food production because the concentration of toxic substances in the seeds or leaves exceeded the World Health Organization (WHO) limit of having a 0.1 milligram concentration of heavy metal per 1 kilogram of food.59 Though hemp seeds and leaves cannot be used for food production, other possible uses of the harvested hemp can be used for energy production in thermal power stations, phytomining, and even production of paint and other industrial oils.60 The harvested hemp can also potentially be used for coastal erosion, which will be discussed further in part three of this subsection.61

The Department of Environmental Sciences at the University of Milano-Bicocca in Italy62 undertook a similar study to assess industrial hemp’s tolerance and ability to absorb heavy metals. Unlike Linger’s 2001 study, this study focused on the absorption of Nickel, Cadmium and Chromium.63 This study concluded that: (1) industrial hemp grown in heavy metal contaminated soil maintained a low THC level; (2) the high heavy metal concentrations in soil do not interfere significantly with hemp growth; and (3) that hemp has a high hyper-tolerance to heavy metals.64 The results of these findings are consistent with Linger’s results. Industrial hemp cannot be considered a hyperaccumulator plant, but it is instead a metal tolerant organism that has evolved mechanisms allowing it to cope with high metal concentration in soil.65 In non-scientific terms, industrial hemp is able to absorb toxins in the environment but may not be the quickest plant in existence.

Though industrial hemp may not be a hyperaccumulator, it is still possible to use the plant to clean up Louisiana. Contaminated soils may be made productive and, although slowly, restored at the same time using industrial hemp.66 It would be a slow restoration process of heavy metal contaminated soil, but it should not matter since some of Louisiana’s superfund sites have been listed on the NPL since 1993.67

The University of Hawaii’s Department of Molecular Biosciences & Bioengineering’s68 study of phytoremediation using industrial hemp undertaken in 2002 is the last study that will be discussed. This study examined phytoremediation of laboratory-contaminated soil with benzo[a]pyrene and chrysene with industrial hemp.69 These two chemicals are known as polycyclic aromatic hydrocarbons (“PAHs”), which are the most hazardous components of oil spills.70 PAHs like benzo[a]pyrene and chrysene are considered to be carcinogenic and have been found to be present in many industrial sites.71

What distinguishes University of Hawaii’s study from the two previously discussed is that this study occurred in Hawaii after the enactment of the Hawaii Strategic Industrial Hemp Development Act of 1999.72 In 1999, the growing of industrial hemp was still illegal unless someone obtained a DEA-issued permit. This is less of an issue since Hawaii was one of the earliest states to receive a permit to grow industrial hemp in 1999.73

The University of Hawaii came to the same conclusion as other studies that focused on phytoremediation with industrial hemp: that industrial hemp can tolerate high levels of heavy metal such as benzo[a]pyrene and chrysene. Even at these high concentrations of PAHs, the growth rate of industrial hemp never fell below 50% in comparison with the control group.74 Overall, the researchers concluded that hemp is a prime candidate for remediation of PAHs-contaminated tropical areas due to the fast growth of industrial hemp.

The study also acknowledged that the use of industrial hemp for further phytoremediation research and purposes is dependent on its status as a controlled crop under the CSA.75 The potential of industrial hemp for environmental purposes, including phytoremediation, or any commercial purpose is limited if the current federal status of the growing of industrial hemp remains the same.

2. Agricultural Benefits

The use and strong reliance on large-scale monocropping of irrigated cotton76 (and other crops) has led to severe soil exhaustion and salinization.77 Industrial hemp is able to provide farmers with many agricultural benefits that may help prevent or stop these soil-related problems, in addition to its capability of being used for phytoremediation.

Industrial hemp improves not only the physical condition of the soil, but it also destroys weeds and does not exhaust the soil’s fertility.78 In addition, the plant serves as a great crop rotation because of its quick and short growth cycle.79 Growing a greater diversity of crops allows farmers to produce high yields for each crop in the rotation, to control pests and weeds with less reliance on chemical pesticides, and to enhance soil fertility with less need for synthetic fertilizers.80 In addition, if retting81 and breaking of the plant is done in the fields, hemp returns its nutrients to the soil, leaving it rich for the next crop.82 Because of all the agricultural benefits of industrial hemp and the increased national awareness of climate change, there is a surge of growth among U.S farmers now planting the crop, often to replace corn, tobacco, and soy.83 In addition, unlike cotton and other heavily pesticide-dependent crops, industrial hemp requires little care (other than basic fertilizer) once its grown, making it more environmentally friendly.84

Furthermore, the plant is able to loosen up soil and make it more ‘mellow’ because the soil is shaded by hemp more than any other crop.85 The foliage at the top of the plant makes a dense shade, and when the leaves fall, it forms a mulch on the ground that helps the surface of the soil retain its moisture.86 This improves moisture penetration and helps with water retention. The loosening of soil also allows for a much easier penetration of nutrients and waters to reach a plant’s roots.

The opposition to the cultivation of industrial hemp often concerns the abundant supply of plant food that is required to cultivate the crop. Though that may be true, most of the food supply absorbed during the crop’s development is returned to the soil at the close of the season.87 Industrial hemp that is cultivated for the production of fiber, cut before the seeds are formed and retted on the land where it has been grown tends to improve rather than injure the soil. In this retting process, nearly all of the soluble ingredients are washed out and returned to the soil.88

3. Coastal Erosion

Approximately half of the nation’s original wetland habitats have been lost over the past 200 years.89 Louisiana’s wetlands represent about 40% of the wetlands in the U.S., but it also accounts for 80% of the losses.90 These wetlands are exceptionally valuable for Louisiana’s economy and way of life because they impact the recreational and agricultural interests of the state. With the growing awareness of the rapid coastal loss that Louisiana and other wetlands have already experienced, many studies have been undertaken to find a solution to this problem. Solutions to stop coastal erosion in Louisiana have included sediment diversion, hydrologic restoration, and marsh restoration. These solutions have helped slow down the process of coastal erosion, but they also have the potential to alter natural coastal processes. They are not the only available solutions to help protect Louisiana’s coast. Industrial hemp may be a form of biodegradable erosion control (BEC) that can help Louisiana’s deteriorating coast.91

BEC refers to methods that help prevent coastal erosion through the use of biodegradable materials.92 BEC methods are more environmentally friendly since they provide an all-natural way of vegetation development that is more suitable for plant growth.93 For example, some contractors have discontinued the use of plastic netting on fiber rolls in favor of biodegradable hemp or coir.94 These plastic nettings can trap and kill some animals that make use of this habitat zone.95 When using fiber rolls created from industrial hemp, the fiber rolls breakdown when exposed to sunlight, lessening their erosion protection over time but still retaining the typical lifespan of five to ten years.96

Another use of industrial hemp that can help prevent coastal erosion is through the recycling of the plant itself for marsh restoration. Jefferson Parish’s Christmas Tree Recycling Shoreline Marsh Project is currently in its 28th year of collecting used Christmas trees from the parish to help mitigate shoreline erosion and rebuild wetlands in the Barataria Basin.97 Since the project’s inception, more than 15,500 linear feet of shoreline wave dampening fences have been constructed, and six abandoned oil canals have been filled near the town of Jean Laffite.98 Though this project has won many awards and has received nationwide recognition,99 one downside is that the collection of Christmas trees occurs only once a year: Christmas. Industrial hemp can be used as an extension of the Jefferson Parish recycling project because it can be collected and recycled year-round, as it is not limited to be grown only during the Christmas season. Not only would this extension increase public awareness of wetland losses and conservation of our natural resources, it would be a way to re-use the harvested hemp that was grown for the purposes of phytoremediation of Louisiana’s superfund sites to prevent coastal erosion.100

4. An Alternative to Fossil Fuels

Society’s dependence on non-renewable resources (i.e., petroleum-based fossil fuel) is a major concern because they are finite and depleting at a rapid rate due to increasing demand.101 Industrial hemp can possibly lessen society’s dependence on fossil fuels through the production of biodiesel. Even former President George W. Bush stated that biofuels (i.e., biodiesel) can help break the U.S. “addiction” to non-renewable resources like foreign oil in his 2006 State of the Union Address.102 President Bush pushed relentlessly for an alternative to foreign oil during his term and even proposed a 22% increase in funding for clean energy technology research at the U.S. Department of Energy through his Advanced Energy Initiative.103

Biofuel is a renewable energy alternative to fossil fuels. It is a highly efficient diesel replacement that is produced by a process called transesterification, a chemical reaction between vegetable or animal fat and alcohol in the presence of a catalyst.104 Currently, the production of biofuels mainly comes from corn, soybeans, olives, peanuts, and rapeseed oil.105 As a result of the widespread access to inexpensive petroleum-based fuels, biofuels gained little interest by society.106 But with the recent increased awareness of the effects of global warming and the increase of oil demand, researchers are becoming interested in biofuel once again.

Recently, researchers at the University of Connecticut discovered that industrial hemp has properties that make it viable and even attractive as a raw material, or feedstock, for producing biofuel.107 Benefits of using industrial hemp as feed stock for biofuel includes: (1) the plant’s ability to grow in infertile soils reduces the need to grow it on primary croplands, which can then be reserved for growing food; (2) lowering emission of sulfur oxide when burned, a major precursor to acid rain; and (3) serving as a carbon neutral replacement to diesel fuel.108 In addition, industrial hemp is a very effective scrubber of carbon dioxide due to the plant’s rapid rate of carbon dioxide ingestion.109 By serving as an alternative to petroleum-based fuel, industrial hemp could lessen society’s dependence on non-renewable resources and help clean air quality at the same time.

However, the idea of using biofuel as an alternative has recently become a controversial topic, especially by environmentalists and the oil and gas industry in the country. Environmentalists argue that biofuels account for a greater carbon footprint because the mechanism utilized to cultivate the crops to produce biofuel requires large amounts of electricity, water, fertilizers, and additional agricultural.110 This issue can be quickly addressed and potentially solved by growing industrial hemp as a feedstock since it requires less care and water in contrast to the current crops being grown as feed stock.111 However, neither both ethanol producers or the oil and gas industry in Louisiana may welcome the increased production of biofuels by using industrial hemp feedstock since it would decrease society’s reliance on petroleum-based fuels and potentially cut in to the demand of their product.

D. Louisiana’s Environment is Ideal to Grow Industrial Hemp

Louisiana may be an ideal environment to grow industrial hemp. The optimal climate112 for the growth of industrial hemp consists of a mild, humid temperate climate.113 Ideal temperatures for industrial hemp growth ranges between 60 and 80 degrees Fahrenheit.114 Industrial hemp reaches a stage of rapid growth when the average daily temperature of the environment is 61 degrees Fahrenheit or higher. In this stage, the plant will grow 4 to 6 centimeters per day. However, industrial hemp can grow in high or low temperatures. The plant also requires a plentiful supply of moisture throughout its growing seasons, and especially during the first six weeks of planting.115 After the plant has become well-rooted; the plant can then endure drier conditions.

The average rainfall in Louisiana from 2010 to 2017 was 57.94 inches, while the average temperature is 67.5 degrees Fahrenheit.116 Louisiana also has the ideal environmental conditions to break down hemp fibers. Comparing Louisiana’s averages from 2010 to 2017 to the ideal conditions to grow industrial hemp, Louisiana seems like an ideal environment to grow industrial hemp.

Moreover, one of the amazing characteristics of industrial hemp is its ability to grow in a variety of soils and climates.117 Industrial hemp is generally an easy crop to cultivate, but the crop will not grow well on stiff, impervious clay soil, or on light sandy or gravelly soils.118 The plant grows best on a loose, well-aerated soil. Soil temperatures of 46-50 degrees Fahrenheit are preferable, but not required.119 The ideal growing conditions for the plant also include a humus- rich120 soil in a lower altitude.121 This perfectly describes Louisiana since the lush vegetation across most of the state causes our soil to have high levels of organic materials that slowly decompose to humus.122 Taking the preferable conditions to grow industrial hemp and the characteristics of Louisiana’s environment into account, Louisiana is an ideal environment to grow the plant.

III. CURRENT REGULATIONS ON GROWING INDUSTRIAL HEMP

A. Federal Regulations
1. Controlled Substances Act of 1970

All cannabis varieties, regardless of THC content, are prohibited because they are considered a Schedule I drug under the Controlled Substances Act (CSA).123 The CSA does not explicitly prohibit the cultivation of industrial hemp, but it strictly prohibits the growing of it by making the cultivation of the plant a federal crime without a DEA-issued permit.124

Under the CSA, all individuals who seek to manufacture or distribute a controlled substance (such as industrial hemp) must apply for a DEA registration.125 Under section 823(a), for the DEA to grant a permit, there are two conditions that must be satisfied: (1) the registration must be consistent with the public interest; and (2) the registration must be consistent with U.S. obligations under the Single Convention on Narcotic Drugs of 1961.126 The applicant seeking the permit has “the burden of proving that the requirements for such registration pursuant to [this section] are satisfied.”127 The DEA application also includes a nonrefundable fee, FBI background checks, and an extensive review of all of the required documentation.128

In addition to obtaining the required DEA permit, the applicant must have an effective security protocol in place at the production site, such as security fencing around the planting area, a 24-hour monitoring system, controlled access, and possibly armed guards to prevent public access.129 Taking into account the extensive process of applying for the permit and strict security protocols required for the production site, the cultivation of industrial hemp does not seem to be worth it for many or most farmers; the steps required to obtain the permit and costs to keep up the security protocols will potentially limit the farmer’s profit margin.

2. The Agricultural Act of 2014 and 2018 – Farm Bills

The Agricultural Acts of 2014 and 2018,130 also referred to as “Farm Bills,” are an omnibus, multi-year piece of authorizing legislation that governs an array of agricultural and food programs.131 Farm bills traditionally have focused on farm commodity program support for a handful of staple commodities, such as corn and soybeans,132 but the 2014 Bill is different from its predecessors because it allows institutions of higher educations and state departments of agriculture to grow or cultivate industrial hemp.133 Section 7606 of the 2014 Bill creates an exception to the CSA by legalizing only the cultivation of the plant in states where it is already legal, notwithstanding existing federal statutes that would otherwise criminalize such conduct.134 In addition, there are no limits to the amount that can be grown under the 2014 Farm Bill. In sum, the 2014 Farm Bill does not legalize the growing of industrial hemp for commercial purposes, but only for academic research purposes in states where the cultivation of industrial hemp is authorized or through a state’s department of agriculture.135

In April 2018, Senate Majority Leader Mitch McConnell (R-Kentucky) introduced standalone legislation, known as the Hemp Farming Act of 2018, to amend the Agricultural Marketing Act of 1946 to include the legalization of the cultivation of industrial hemp.136 As an extension to its 2014 predecessor, the 2018 Farm Bill included provisions to legalize the cultivation of industrial hemp for commercial purposes, not just academic research purposes in authorized states. The 2018 Farm Bill is one of the first pieces of legislation that recognizes and clarifies the difference between industrial hemp and marijuana. Though the 2018 Farm Bill is a breakthrough for the cultivation of the crop, the legalization of the crop still comes with serious restrictions.

Unlike its 2014 predecessor, the 2018 Farm Bill is more expansive and allows cultivation of industrial hemp not simply limiting it to pilot programs approved by the USDA and each state’s respective department of agriculture. The 2018 Farm Bill now allows the transfer of hemp-derived products across state lines for commercial purposes137 and removes industrial hemp-derived products from its Schedule I status in the CSA.138 Section 11101 of the 2018 Farm Bill also treats industrial hemp farmers like other farmers in the country by allowing them to be protected under the Federal Crop Insurance Act.139 Protection under the FCIA is significantly important because it recognizes industrial hemp as a crop and will be critical in the early development of the industrial hemp market. Furthermore, the 2018 Bill does not restrict the sale, transport, or possession of hemp-derived products so long as the items are produced in a manner consistent with the law.140

Even with the broad 2018 expansion, do not be fooled by thinking that individuals or businesses are allowed to freely grow industrial hemp. There are still many restrictions in dealing with the cultivation of the crop. First, the industrial hemp being grown cannot be more than 0.3 percent THC.141 If the crop contains more than 0.3 percent THC, the crop would still be classified as Schedule I marijuana. Second, state departments of agriculture must now consult with the state’s governor and chief law enforcement officer to devise a plan that must be submitted to the Secretary of the USDA.142 In other words, for an individual or business to grow industrial hemp in their state, the respective state must still get approval by the USDA and then apply for specific licenses in each state that is in compliance with the 2018 Bill. Last, the 2018 Farm Bill details potential punishments for violations (including felonies) and includes pathways for violators to become compliant.143 To determine whether industrial hemp producers are in violation of the new regulations, the 2018 Bill requires producers to be subjected to random annual inspections “to verify that hemp is not produced in violation of this subtitle.”144

B. Louisiana Regulations

As of now, Louisiana does not have any state laws concerning the regulation and cultivation of industrial hemp. This absence of regulation gives Louisiana the freedom to decide whether to opt in to the 2018 Farm Bill and legalize the cultivation of industrial hemp. Though Louisiana may not have taken a stance on the cultivation of industrial hemp, Louisiana does allow the use of medical marijuana under Revised Statute 40:1046.145 Prior to the enactment of R.S. 40:1046, also known as the Allison Neustrom Act,146 in 2015, the use of marijuana, medical or recreational, was prohibited. Act. 261 was passed by the legislature to amend R.S. 40:1046 to allow physicians licensed to practice medicine in the state of Louisiana to prescribe medical marijuana.147 Act 261 therefore legalized the use of medical marijuana to a limited group of people with a ‘debilitating condition,’ but the use of recreational marijuana remains prohibited.148 This Act also allows the Louisiana State University Center and the Southern University Agricultural Center to grow marijuana for medicinal and therapeutic purposes only, meaning the growing of industrial hemp for commercial purposes was not included.149 Even when the Louisiana legislature expanded Act 261 to increase the group of people with a debilitating condition through the enactment of Act 708, the growing of industrial hemp for commercial purposes remains prohibited in the state.150

D. Obstacles and Opponents of Legalization

As discussed above, the confusion between industrial hemp and marijuana is mainly due to the CSA’s adopted definition of ‘marijuana’ from the Marihuana Tax Act.151 The CSA adoption of the definition essentially defines marijuana as to include industrial hemp, which results in the plant being categorized as a Schedule I drug. Though that may be true, the confusion between industrial hemp and its sibling does not only derive from the Marihuana Tax Act.

Many people are blind to the differences between industrial hemp and marijuana due to the stigma surrounding marijuana.152 Marijuana has been intertwined with race and ethnicity in American history since well before the term ‘marijuana’ was coined.153 Throughout the nineteenth century and until the early twentieth century, news reports and medical journal articles almost always used the plant’s formal name, Cannabis sativa.154 The term ‘marijuana’ was introduced into American society from Mexican slang, mostly due to the efforts of journalist William Randolph Hearst.155 Hearst’s particular brand of “yellow journalism,” with its sensationalistic and unscrupulous reporting style, pounded the term “marijuana’ into the public mind from 1917 to 1937.156 Some of Hearst’s stories included headlines portraying minorities as “frenzied beasts under the influence of marijuana, who played anti-white ‘voodoo-satanic’ music” or “Hotel Clerk Identifies Marihuana Smoker as ‘Wild Gunman’ Arrested for Shooting.”157

The negative stigma surrounding marijuana became popular to use in the early twentieth century because anti-cannabis organizations wanted to underscore the drug’s “Mexican-ness,” attempting to play off anti-immigrant sentiments in the United States.158 Hearst’s papers inaccurately portrayed Mexican nationals as lazy, generate and violent who smoke marijuana and steals jobs.159 Having the plant associated with Mexican immigrants and crime created the stigma of how the plant, regardless of the differences between industrial hemp and marijuana, is bad for the public.

Due to the confusion between industrial hemp and marijuana, many opponents of the cultivation of industrial hemp oppose legalization of the plant because of the belief that it will lead to the legalization of marijuana.160 Furthermore, once marijuana is legalized, opponents believe that it will have devastating effects to the public such as driving while high and smoking marijuana in public. In other words, opponents believe that once the federal government legalizes industrial hemp, they will shortly legalize marijuana for recreational use, and there will be public chaos from everyone being “high.”

The idea that the legalization of industrial hemp will lead to the legalization of marijuana may be a possibility. As to the devastating effects of driving high or smoking in public, there are regulations that can be implemented to prevent this. Consider drinking and driving. Drinking and driving is a crime in all 50 states, but there are people who still do it. It can be argued that drinking and driving may be more dangerous than driving while high. Regardless of which is more dangerous, there can be regulations and sanctions to address the issue of driving high, just like how people can be punished for drinking and driving, speeding, and violating other laws. For example, Colorado law specifies that drivers with five nanograms of active THC in their blood system can be prosecuted for driving under the influence, even if an individual is prescribed or legally acquired the marijuana.161

A second popular argument by opponents of the legalization of industrial hemp consists of the idea that, if the cultivation of industrial hemp is legalized, some people might plant marijuana in the hemp fields because they look similar.162 Opponents of industrial hemp are essentially arguing that marijuana grown for use as a recreational drug is indistinguishable from marijuana grown for medicinal purposes and is therefore easy to “hide” among plants purportedly being grown for medicinal use.163 Though in theory this is a possibility, experts who are familiar with the cultivation of Cannabis sativa know that planting marijuana and industrial hemp in the same field or a nearby location is not a good idea. Cross-pollination between the two plants would significantly reduce the potency of the marijuana plant by resulting in a lower THC concentration.164 Furthermore, if the cultivation of industrial hemp is legalized, the government can simply put regulations for the growing of the plant through the Department of Agriculture as they do for other crops.

IV. PROPOSED FUTURE ACTIONS

As a result of the federal government legalizing the cultivation of industrial hemp under strict restrictions, there are three courses of actions that Louisiana can take in order to participate in the various financial opportunities of the U.S. industrial hemp market and the environmental benefits from the crop’s production.

The first and most direct course of action that Louisiana could take is just to follow the authority of the 2018 Farm Bill and come up with a plan to license and regulate the cultivation of industrial hemp and get it approved with the U.S. Department of Agriculture. Essentially, the governor and the chief law enforcement officer of the state would have to create a system that could allow farmers to obtain a license to cultivate the crop that is in strict compliance with the 2018 Farm Bill and addresses criminal sanctions for violations. Though this may not be the easiest solution, this would be the most direct way to legalize the cultivation of industrial hemp in Louisiana as a result of the recent passing of the 2018 Farm Bill. Under this course of action, the cultivation of industrial hemp would be allowed for both academic and commercial purposes.

A second course of action that Louisiana can take is to amend Revised Statute 40:1046 to include the research of marijuana for commercial purposes (industrial hemp). The legislature would essentially have to redefine ‘marijuana’ and distinguish it from industrial hemp, similar to what the federal government did in the 2018 Farm Bill. By distinguishing marijuana and industrial hemp from one another, individuals and businesses would then be able to cultivate the crop for commercial purposes, and the use of recreational marijuana would still be prohibited.

If Louisiana does not come up with a plan to license and regulate the cultivation of crop or does not distinguish industrial hemp from marijuana, a third course of action would be to pass legislation for the crop to be grown purely for the environmental purposes discussed above and then potentially allow the harvested crop to be used in other industries. This course of action may somewhat appease opponents of industrial hemp in the state who are worried about the crop’s similarity to its cousin, marijuana. By failing to legalize the cultivation of industrial hemp, Louisiana is missing out on a “greener” alternative to help remediate our environment.

CONCLUSION

The legalization of industrial hemp is long overdue at the state level. It took the federal government a long time to recognize the differences between industrial hemp and marijuana. There are already several states that have taken initiative and legalized the cultivation of industrial hemp. It is not a miracle crop that will fix all the issues in the State, but it is crop that can potentially assist us in remediating our soil, help reduce the effects of coastal erosion, and even serve as an alternative feedstock for biofuel production. If Louisiana does not legalize the growing of industrial hemp, Louisiana might be missing out on not only a big economic opportunity, but an opportunity to help improve and clean up the state through the cultivation of industrial hemp.