A Hopkinton farmer and a state advocacy group have taken their quest to grow hemp to the U.S. Supreme Court.
The case is the first hemp lawsuit to reach the nation’s highest court, their lawyer, Gordon Blackeney of Concord, said.
The lawsuit was filed June 27 and the court has yet to decide whether to accept it. The Supreme Court hears only a tiny fraction of cases filed — about 100 out of more than 7,000 filed in a year.
The appeal asks the court to decide whether federal laws against marijuana actually forbid the production of hemp. Hemp and marijuana are the same species, but while marijuana is a drug, hemp is used for a variety of strictly material, commercial purposes.
Derek Owen of Hopkinton, a farmer and state representative, filed the appeal along with the New Hampshire Hemp Council, a non-profit education and advocacy group, after the U.S. District Court and 1st Circuit Court of Appeals rejected their interpretation of federal law.
Their case was the first to be filed at the federal district court level in the United States, and the first to reach the top court, Blackeney said.
“It hasn’t been looked at by the Supreme Court before, and the implications are huge,” Blackeney said.
“This is one of those last stands for agriculture,” he said.
Owen has also twice introduced bills in the state legislature to permit hemp farming, in 1998 and 1999, but they were narrowly defeated both times.
Law enforcement and other critics argue that hemp farming could serve as a smoke screen for marijuana production.
Opponents also fear that legalizing hemp will pave the way toward legalizing marijuana — and in fact, many advocacy groups argue in favor of both.
The New Hampshire lawsuit argues that hemp has never really been illegal, and the Drug Enforcement Administration has been overstepping its bounds by treating it as such. They argue hemp could be a valuable crop, especially in state such as New Hampshire, where climate and soil conditions make most farming an uphill battle.
Hemp and marijuana both were widely grown in the United States until the Marijuana Tax Act of 1937.
When adopted, the act was intended to allow the continued production of hemp, but Congress failed to distinguish between hemp and marijuana.
Federal law defines marijuana as “all parts of the plant cannabis sativa,” dead or alive and including any derivatives. The same law, however, makes an exception for “the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant,” or preparations made from them.
Thus, under the law, hemp products are legal in the United States, but you can’t grow hemp, because the unprocessed plant is defined as marijuana.
“In short, on a literal reading of the statute, the plant — which is what Owen proposes to grow — is within the statute’s ban,” the 1st Circuit Court ruled, adding that the while law appears to carve out an exception for hemp products, it bans the plants “regardless of use.”
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