New Hampshire Hemp Council, Inc. v. Marshall

Brief Fact Summary.

Derek Owen (“Owenâ€) and the New Hampshire Hemp Council (“Hemp Councilâ€) brought suit against the United States Drug Enforcement Agency (“DEAâ€) and sought a declaration in the definition of “marijuana†under 21 U.S.C. § 802(16).  Owen claimed that the statute did not criminalize the growth of “non-psychoactiveâ€, low THC level, cannabis sativa.

Synopsis of Rule of Law.

If the plain meaning of the statute does not warrant a narrower reading, the statute must be read as written.

Facts.

Owen, a member of the New Hampshire Legislature, co-sponsored a bill that focused on the legalization and regulation of the cultivation of “industrial hemp.†The bill illustrates that the drug commonly referred to as marijuana and varies industrial products originate from distinct portions of the hemp plant. The cannabis sativa plants grown for industrial purposes usually originate from different strains of the plant and are cultivated and matured differently, compared to the strains intended for the marijuana drug. Further, the plants grown for industrial purposes have a lower THC content, one percent or less, than those for drug use.  Moreover, Owen and the Hemp Council initiated a declaratory action in the district court. The district court rejected the complaint, and Owens and Council appealed.

Issue.

Whether 21 U.S.C. § 802(16) defines marijuana as all cannabis sativa plants, regardless of the plants level of psychoactive effects.

Held.

Yes, Congressed intended to define marijuana as all cannabis sativa plants, regardless of the level of psychoactive effects the plant carries.

Discussion.

The plain meaning of the statute bans industrial hemp.  Nevertheless, the court considered Owen’s arguments.  First, the THC level in industrial plants is lower than the plant produced for drug purposes. The court rejected Owen’s argument on the grounds that amending the ban based on the plants THC level would be problematic. Owen’s expert testified that psychoactive properties’ of the plant are “visually indistinguishable.†Thus, the ban would be difficult to properly enforce.  Second, Owen explained the legislative history of the definition of marijuana stemming from the Marihuana Tax Act of 1937. The Act of 1937, distinguished the different types of plants by taxing them differently.  Further, the act did not apply a tax to transfers of plant used solely for industrial purposes.  Additionally, in 1970, Congress adopted the Controlled substance Act, which repealed the Act of 1937.  The 1970 Act, kept the previous definition of marijuana from the Act of 1937 and created a relatively low tax on industrial hemp production.  Here, Owen alleges that the 1970 statute should be interpreted as a protection of industrial hemp plant by further distinguishing the plants psychoactive and non-psychoactive strains.  Nevertheless, the court rejected Owen’s argument on the ground that Congress’ previous protections on the plant stemmed from a scheme of different tax rates and transfer requirements.  Also, even if Congress would not have adopted the 1970 statute if it had been aware of the cultivation effects, that possibility alone is not a basis for the court to construe the statute in a manner contrary to its literal language.  Lastly, Owen points out that the courts have previously extended the 1970 statute beyond its literal meaning to include several other cannabis species, not solely sativa species, because those plants can provide the same amount of THC.  However, the court rejected Owen’s final argument on the grounds that the court may read the statute to cover other possible species on multiple grounds, not simply THC.  Therefore, because the statute at issue in this case literally bans the growth of hemp plant for industrial use, the meaning of the statute cannot be altered.