And meanwhile hamstrings hemp growers
By Richard Rose • The recent Proposition 64 in California, aka Adult Use of Marijuana Act (AUMA), made genetically-engineered cannabis by universities a near certainty, while ensuring farmers will remain uncompetitive compared to Colorado and foreign farmers.Now low-THC hemp is “less legal” and more-regulated than high-THC Marijuana to grow in the state. It continues the government institutions’ monopoly on hemp farming, prevents CBD hemp by farmers, and opens the door for GMO hemp and marijuana. The law also encourages male hemp pollen contamination of far-more-valuable THC crops all around the state, which was one reason hemp wasn’t allowed before.
California has a history of highly-restrictive hemp laws; the previous laws’ sponsor was the only state Senator with no farms in his district, San Francisco, but many Prop 215-legal medical grows. To assuage concerns that he was truly submitting an agriculture bill and not a covert marijuana legalization bill, and/or to slow the introduction of male hemp pollen to those legal medical grows, he wrote one of the most-restrictive hemp laws ever. It effectively stopped hemp in the state, until the last election and Prop 64.
The writers of Prop 64 have made hemp unprofitable for the average farmer. Additionally, the new law burdens farmers far greater than institutions (mostly universities), who get a free pass on all of the most-restrictive requirements; can grow indoors in any manner they choose of any cultivar they choose with no THC test whatsoever, unlike farmers. And most worrisome, there is nothing preventing those institutions which have little such oversight from developing a GMO hemp cultivar.
This unlevel playing field for farmers ensures that the new intellectual property will be developed by institutions, that the by far most-valuable part of the hemp plant is grown by marijuana growers, and the hemp farmers are stuck with the leftovers, forced to use unsuitable seed to grow only oilseed and fiber, which amounts to less than 2% of their potential value from CBD.
Requires unavailable seed
Requiring certified seed for farmers but not institutions is particularly troublesome as no cultivars exist for California’s latitude; the closest is hundreds of miles north at 45 degrees. Additionally, institutions researching certified cultivars will be developing data for the benefit of private for-profit foreign corporations, and proving that those cultivars merit use in California which is really the job of the cultivar’s maintainer.
Down from five acres previously, 4,200 square feet is now the smallest size for your field of “densely planted” hemp. It must be done outdoors, whereas in Colorado a third of hemp licensees are indoors, with around 500,000 square feet.
The definition of hemp includes live and post-harvest products, meaning 0.3% max THC in all hemp products, except CBD products which are now regulated as marijuana. This is a diminishing of rights granted by the Ninth Circuit in 2004 which allowed any naturally-occurring amount in hemp products. In Colorado, the state’s jurisdiction ends upon harvest.
Institutions over farmers
Here are excerpts that reflect the specific ways the Act gives institutions huge advantages over farmers:
- “Except when grown by an established agricultural research institution or a registered seed breeder, industrial hemp shall be grown only as a densely planted fiber or oilseed crop, or both, […].”
- “Pruning and tending of individual industrial hemp plants is prohibited, except when grown by an established agricultural research institution […].”
- “Except when industrial hemp is grown by an established agricultural research institution, a registrant that grows industrial hemp under this section shall, before the harvest of each crop and as provided below, obtain a laboratory test report indicating the THC levels […].”
- “Sampling shall occur as soon as practicable when the THC content of the leaves surrounding the seeds is at its peak and shall commence as the seeds begin to mature, when the first seeds of approximately 50 percent of the plants are resistant to compression.” (Note: CBD hemp is usually only unpollinated females, which means no seeds. Institutions are exempt from this requirement.)
- “Established agricultural research institutions shall be permitted to cultivate or possess industrial hemp with a laboratory test report that indicates a percentage content of THC that is greater than three-tenths of 1 percent if that cultivation or possession contributes to the development of types of industrial hemp that will comply with the three-tenths of 1 percent THC limit established in this division.” (Although this is a critical issue for breeders, institutions are given the advantage.)
Spectre of a shutdown
The Farm Bill is passed every 2 to 5 years. If Section 7606 of the 2014 Farm Bill protections aren’t included again, the entire program could be shut down, but only for farmers: “If, in the Attorney General’s opinion issued pursuant to Section 8 of the act that added this division, it is determined that the provisions of this section are not sufficient to comply with federal law, the department, in consultation with the board, shall establish procedures for this section that meet the requirements of federal law.” California Attorney General Kamala Harris already released in 2014 a restrictive interpretation of the federal legality of growing industrial hemp in the state under Section 7606 protections. The last paragraph: “We conclude that federal law imposes limitations that are inconsistent with the hemp Act in that: (1) it continues to prohibit the cultivation of industrial hemp for purposes other than agricultural or academic research; (2) it restricts those persons or entities who may cultivate industrial hemp for agricultural or academic research to the CDFA or an institution of higher education; (3) it prevents even these authorized entities from instituting an agricultural pilot program to study the growth, cultivation, or marketing of industrial hemp, unless the program is conducted in compliance with additional federal requirements set forth in section 7606(b)(1)(B) of the Agricultural Act, and (4) it prohibits, even for research purposes, the cultivation or possession of the parts of the plant Cannabis sativa L. that exceed a 0.3% concentration of THC. Provisions of the hemp Act are inoperative to the extent that they apply or pertain to any form of industrial hemp cultivation not authorized by federal law.”
From the previously-existing hemp law requiring certified seed, again institutions get a free pass to grow non-certified cultivars. Cultivars are certified at a certain latitude, the most south of which is well north of California, a huge obstacle for farmers, who will not be able to use emerging certified cultivars since, they weren’t certified before 2013:
From Div. 24, section 81002 of the Food and Agriculture Code:
“(a) Except when grown by an established agricultural research institution or by a registered seed breeder developing a new California seed cultivar, industrial hemp shall only be grown if it is on the list of approved seed cultivars.
(b) The list of approved seed cultivars shall include all of the following:
(1) Industrial hemp seed cultivars that have been certified on or before January 1, 2013, by member organizations of the Association of Official Seed Certifying Agencies, including, but not limited to, the Canadian Seed Growers’ Association.
(2) Industrial hemp seed cultivars that have been certified on or before January 1, 2013, by the Organization of Economic Cooperation and Development.
(3) California varieties of industrial hemp seed cultivars that have been certified by a seed-certifying agency pursuant to Article 6.5 (commencing with Section 52401) of Chapter 2 of Division 18.
(c) Upon recommendation by the board or the department, the secretary may update the list of approved seed cultivars by adding, amending, or removing seed cultivars.”
The new law adds this requirement when submitting samples for THC testing, eliminating the main benefit of using certified cultivars which is stable low THC content (why test that which is certified to be stable and low THC?): “Seed certification documentation for the seed cultivar used;” and “The THC testing report for each certified seed cultivar used.”
Telling the breeder how to do his job
Here they even tell the seed breeding professional how to do his/her job, and of course it is a huge hindrance. How might they define “as densely as possible”, especially if you have an antagonistic inspector or local cop out to get you: “Registered seed breeders, for purposes of developing a new California seed cultivar, shall grow industrial hemp as densely as possible in dedicated acreage of not less than one-tenth of an acre and in accordance with the seed development plan.”
What? No gummies?
Unlike marijuana, ornamental cultivation of industrial hemp is prohibited.
While institutions don’t have to test for THC, farmers do and have to give the THC report to the customer and even the trucker shipping it, which is why they require the lab give the farmer 10 copies of the report, which the farmer is required to keep for two years.
All CBD or other Cannabinoid or Terpenoid products must be grown and produced as though marijuana, under Division 10 of the Business and Professions Code, instead of the Food and Agriculture Code, like hemp.
No CBD gummies, sodas, or other products may be produced which might appeal to children.
Required is a Cannabinoid Facts for Marijuana, and CBD or other cannabinoid product, much as we have Nutrition Facts on food and Supplement Facts on supplements.
Furthermore, marijuana and CBD or other cannabinoid products are required to be “homogenized,” which is a specific process used to break fat and emulsify it in milk. How a CBD water, cookie or chocolate bar will be homogenized promises to be interesting.
GMO hemp and marijuana on the Horizon
As for the prospect of hemp being genetically-engineered under the hemp program: the universities have enormous latitude due to lack of oversight or regulations in the hemp section of Prop 64. It’s just a matter of time before an institution such as UC Davis, in partnership with a hemp licensee under a confidential Memorandum Of Understanding (which could be done by any company, even Monsanto, and we would never even know) in order to “research hemp” by performing gene-splicing. That could range from, say, kill the THC synthase gene, or add markers to trace or track for taxation or regulation, perhaps even add genes from another species of plant or animal (transgenic). Even nefarious outcomes such as polluting the hemp gene pool for whatever reason, perhaps sabotage. Or something which turns people off hemp, such as adding shrimp genes so people get sick from products made of hemp fiber or seed, for export to competing foreign farmers.
Genetic engineering is not hard. Buy a $50 CRISPR tool and you’re in business. Of course, to do it right it will need to be a bit more for a real lab, like which exist in universities. It doesn’t even need to be Cannabis anymore to make Cannabinoids; yeast or even tobacco will suffice. FDA recently awarded a grant to develop yeast-grown Cannabinoids using genetic engineering. There are already thousands of companies doing genetic engineering in the U.S., and no doubt at least one is working in Cannabis. But with Prop 64, a genetic engineering firm could be sued by shareholders for not getting into a research program with a California university to work on the Cannabis genome.
Hemp research or “hemp research”?
They will ostensibly do it as “hemp research” with a friendly university. There is no THC testing, or any other oversight. They could do literally any conceivable genetic engineering, under guise of an industrial hemp program, in their quest to “develop low-THC hemp cultivars.” For Californians, it’ll be Your Tax Dollars At Work, because the university will do the heavy lifting using students and grads. While developing marijuana under the auspices of a hemp program has long been every prohibitionists’ nightmare, if a bio-tech company does it with a university, it’s just free enterprise.
The impact of the recent Monsanto/Bayer merger is something to watch. Perhaps they will genetically-engineer a Cannabis cultivar for a Bayer medicine containing rare Cannabinoids, such as a THCV diet pill.
All this is possible under Proposition 64, making California once-again on the cutting edge, for better or worse.