The Arbitrary Legal Line That Separates Hemp & Marijuana

Today, President Donald Trump signed the 2018 Farm Bill, thereby removing hemp from the Controlled Substances List and making it clear that the federal government considers industrial hemp to be a legal substance. But only one criteria determines what makes a plant hemp and not its still-illegal cousin marijuana: whether or not the plant has less than 0.3 percent THC.

Today, there is a growing consensus among hemp advocates that the 0.3 percent limit for THC content is holding back the industry and isn’t based on hard science. And the person credited with arriving at this limit himself agrees.

“A 0.3 percent level is very conservative,” says Dr. Ernest Small, the man who set forth the 0.3 percent level in a 1976 paper published in the Netherlands-based scientific journal Taxon called “A Practical and Natural Taxonomy for Cannabis.”

Since 1976 many countries, the U.S. included, have adopted this THC designation. The European Union initially established a 0.5 percent THC limit in 1984, changed it to 0.3 percent THC in 1987, and then lowered it to 0.2 percent in 1998. Canada adopted the 0.3 percent limit in 1998.

But in that original paper, Dr. Small actually acknowledged the 0.3 percent line was arbitrary, writing: “It will be noted that we arbitrarily adopt a concentration of 0.3 percent Delta-9-THC (dry weight basis) in young, vigorous leaves of relatively mature plants as a guide to discriminating two classes of plants.”

And four decades later, Dr. Small stresses that the 0.3 percent THC designation for hemp has negative implications for biodiversity.

“0.3 is proving a little problematical for those who wish to produce some cultivars,” Dr. Small told Cannabis Now. “It’s an especially stringent criterion [for] those who want to produce CBD. Most of the varieties selected for that have in excess of 0.3, which is kind of inconvenient.”

The Contested Border Between Hemp and Marijuana

Attorney Patrick Goggin of Hoban Law Group, who has experience in litigation concerning the difference between hemp and marijuana, says that he believes the 0.3 percent THC limit is not a suitable legal definition for hemp.

“It seems like it is pretty much pulled out of air,” Goggin says. “We ought to be looking to science to determine an appropriate threshold.”

Goggin notes that the European Union lowered their THC limit in hemp to 0.2 percent in 1999 because of pressure from French producers who sought to retain their market share as such major producers as Hungary moved to join the EU.

“There was no science,” Goggin says. “It was based on some group’s effort to get a more competitive advantage. It was capitalist.”

Goggin served as co-counsel in HIA v DEA, in which the Hemp Industries Association argued that no-THC parts of the cannabis plant, including stalk and sterilized seed, are exempt from the Controlled Substances Act. In a 2004 ruling, the U.S. Ninth Circuit Court of Appeals agreed, shooting down proposed DEA rules specifically controlling these products. The Ninth Circuit said in its opinion that rescheduling of cannabis should be broached.

Goggin was also co-counsel in HIA v DEA III, which challenged the DEA’s Marijuana Extract Rule for failing to make a carve-out for CBD derived from industrial hemp. The HIA sought to establish a legal distinction between hemp-derived and marijuana-derived CBD. The petition was denied on procedural grounds, but the Nineth Circuit issued an “unpublished order” finding that the Controlled Substances Act is pre-empted in this matter by the Industrial Hemp Research Amendment of the 2014 Farm Bill. Such unpublished orders do not actually establish case law, but are held to have “persuasive authority.” So the case was a moral if not a technical win.

What Hemp Farmers Say: Raise the Limit For More Genetic Diversity

The last legal hemp crop in the United States was grown in 1958 in Wisconsin. That was before the 1971 Controlled Substances Act, and under the old Marihuana Tax Act of 1937 (which established prohibitive taxes for cannabis), there was a more lenient taxation rate for industrial hemp farmers. The distinction was then based on farming methods (tall hemp densely planted in rows) and end-use, rather than any actual limit on the THC level. Still, the tax was high enough for farmers to abandon the crop, especially in the age of synthetic fibers.

Eric Steenstra of advocacy group Vote Hemp similarly argues that the “practical effect of the 0.3 percent standard is it limits the types of genetics that can be used.”

Food and drug researcher Jace Callaway has been growing his FINOLA brand hemp in Kuopio, Finland, since 1995. Before that he worked at the Department of Medicinal Chemistry at the University of Mississippi. In the same building, the School of Pharmacy was doing what Callaway calls its “cop-related” cannabis research — the only cultivation then approved by the DEA, and funded by the National Institute on Drug Abuse (NIDA).

Callaway spoke to Cannabis Now in November by phone from Winnipeg, where he was attending the Canadian Hemp Trade Alliance annual conference. FINOLA is widely grown in Canada, as well as across Europe. Derived from an “escaped cultivar” (that is, one gone feral after a period of agricultural use) probably of Russian origin, FINOLA is registered with the Geneva-based International Union for the Protection of New Varieties of Plants (UPOV).

While FINOLA generally falls below the 0.2 percent THC threshold in Europe, Callaway noted that it isn’t straightforward to determine which hemp plants will stay below the THC threshold and which could grow into the legal definition of marijuana.

“Any hemp variety can be pushed over that limit,” he says. “It’s a question of how it’s grown — light, fertilization, harvest time — and how it’s sampled. That is, what part of the plant — whole plant or just bud — and how the sample is analyzed, and how competent the lab is.”

Goggin agreed, saying, “Raising [the THC limit for hemp] opens up new cultivars and strains that aren’t able to get down to 0.3. so it gives more flexibility to farmers. We are trying to recover our seed stock, because we didn’t grow it from 1958 to 2015. We need cultivars and seed that are adapted to the region they are growing in — for soil and climate and sun exposure.”

Dr. Ernest Small Speaks on His Legacy

Reached by phone in November at his office in Ottawa, Dr. Small had this to say when asked how he felt as his idea was taken up by the policy world: “Initially, quite flattered. Because we in the business of taxonomy try to propose classifications useful to society. Our work was adopted as a criterion to prevent what I’ll call abuse of the euphoric possibilities of the cannabis plant.”

But Dr. Small continued: “A 0.3 percent level is very conservative, and my skepticism today is if we were to adopt a criterion for non-abusive use of the plant — e.g. for oilseed, an important product — I’d suggest 1 percent as a more reasonable criterion. Because that’s the level you need for a euphoric effect.”

He also noted, however, that the federal government hasn’t been reasonable when it comes to the cannabis plant. For example, he cited the paradox that there’s little legal scrutiny over the growth of ornamental opium poppies, without testing the poppy’s potency.

“There is no such limit in legislation or regulations for ornamental opium,” Dr. Small says. “This all reflects a certain inconsistency, ignorance and irrationality of we as human beings. But fear-mongering that becomes established in society and legislation is hard to change.”

TELL US, do you think the 0.3 percent THC line makes sense when considering the difference between hemp and marijuana?