Amendment X: Why an ‘industrial hemp’ question on Colorado’s ballot is important to a fledgling agricultural industry

Photo by Maja Dumat for Creative Commons on Flickr

Imagine if Colorado, a pioneer in the nation for legalized marijuana, ended up locked out of a competitive advantage if the federal government relaxes its own rules for growing hemp. You can almost hear Alanis Morissette adding a verse to her famous song.

But that could happen, say those in Colorado’s hemp industry who are counting on voter support for a little-discussed question, called Amendment X, that appears on this November’s ballot. The ballot measure accompanies a dozen others that range from slavery to gerrymandering to how to fund education and transportation.

Buried in this cascade of questions, and one that got little in-state attention prior to ballots going out in the mail on Oct. 15, is this:

“Shall there be an amendment to the Colorado constitution concerning changing the industrial hemp definition from a constitutional definition to a statutory definition?”

What does this mean exactly?

Colorado is the only state that has a definition of industrial hemp in its Constitution, according to hemp industry lobbyist Cindy Sovine.

In Colorado, hemp is a cannabis plant with a THC level of no more 0.3 percent*. In other words, it can’t get you high. But it can be used in some 25,000 products spanning from clothing to construction, health foods, biofuels, and more.

Voters placed the definition of industrial hemp in our founding document in 2012 because it was part of the groundbreaking constitutional Amendment 64 that legalized the sale and use of recreational marijuana. So, in Colorado, industrial hemp is defined as “the plant of the genus cannabis and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration that does not exceed three-tenths 23 [0.3] percent on a dry weight basis.” In other words, hemp can have .3 percent THC in it and still be legally considered hemp, per the Constitution.

Part of the changes to the state Constitution in Amendment 64 directed lawmakers to enact legislation about growing, processing and selling hemp. Since then, Colorado has led the nation in hemp production. Now, some of its biggest champions want the definition of industrial hemp out of the state Constitution.

Why?

Because members of Congress could take hemp off the Controlled Substances Act in this year’s pending Farm Bill and change its federal definition. If they do that and heighten the allowed THC level higher than Colorado’s, it could put other states at a better advantage if Colorado’s definition remains the same because they could grow more without worrying about trying to keep the THC level as low. The concern is farmers in other states might not have to lose as much of their crop as Colorado would if farmers here are stuck with a lower THC level. 

Hence, the ballot measure asking voters to kick the current definition out of the state Constitution and give it to state lawmakers who could more quickly adjust it to react to federal changes. In Colorado, the only way to change the state Constitution is by asking voters to do so at the ballot box every couple years.

The effort to get this measure on the ballot wasn’t actually being led by the hemp industry, but instead by Vicki Marble, a Republican senator from Fort Collins, who spearheaded an effort after hearing concerns from people in the hemp industry. She and other legislative supporters persuaded two-thirds of the 100-member state legislature to go along, which is what it takes for them to refer a measure directly onto the ballot. (Other lawmaker-referred measures this year include lowering the age to become a lawmaker and changing the way the state draws political lines.)

A month before ballots went out the mail, the hemp question was so under the radar that not even everyone in the hemp industry was aware of it.

Ed Lehrburger, CEO of hemp processing company PureVision Technology in Fort Lupton who also sits on a hemp advisory committee at the Colorado Department of Agriculture, said he hadn’t heard about it. He worries the average voter likely hasn’t either, let alone could be able to understand what the question means in practice when filling out their ballot. “We’ve got to get the word out,” he said.

In 2016, proponents of a measure to get rid of an exemption for slavery in Colorado’s Constitution thought their effort would be a slam dunk. But when voters faced the question on ballots that year, they voted it down. Stunned activists later found voters were confused because of the way the question was written. Some wonder if something similar could haunt this year’s hemp measure.

“The language is very difficult for the regular person to understand,” says Grant Orvis, a Longmont geneticist who leads hemp foundations and sits on hemp-related boards including one at the Colorado Department of Agriculture.

Orvis says he isn’t sure how he’ll vote on the measure because he doesn’t like the idea of lawmakers being able to change the definition willy-nilly. If it just adjusted to the federal definition, he says he would be fine with it. As a geneticist, though, he thinks hemp growers should be working harder toward getting the THC levels in their crops as low as they can so THC doesn’t become an issue. “I would never actually try to make that argument,” though, he says, “because as a capitalist we need to have equality in the market especially if other states go above 0.3 percent.”

Whether federal lawmakers this year actually will relax rules for hemp in the latest Farm Bill remains to be seen. 

Boulder Democratic Sen. Steve Fenberg, who helped get the measure on the ballot, says even if it doesn’t happen, the ballot question should spark a larger conversation about what should be in the state Constitution. Sometimes if you get too specific, he says, it can be limiting, and an example is enshrining the definition of hemp in the Constitution.

“We were a pioneer in regulating marijuana and hemp and this industry, and this is really to make sure Colorado can stay on the forefront of that,” he says. “It just ensures we have the flexibility for our farmers to be able to do what they need to do to be able to compete nationally, if not internationally.”

Doug Robinson, a businessman who ran unsuccessfully in the Republican primary for governor, helped launch a nonprofit called SMART that aims to keep kids safe from the effects of legal marijuana. When it comes to hemp production, he says his group is not opposed to the ballot measure and he hasn’t heard of anyone who is. “We think that hemp could have a good role of opportunity for job creation,” he says.

But some people do oppose it.

Robert J. Corry, Jr. a lawyer who helped write Colorado’s Amendment 64 and is running a campaign against this ballot measure, penned an editorial in Westword about why he opposes it.

“The logically bereft justification for Amendment X goes something like this: Federal law may someday, maybe, increase the amount of THC allowed in hemp from 0.3 percent to 1.0 percent or something similar, which somehow makes Colorado’s definition of 0.3 percent too ‘low,'” he wrote. “The politicians’ folly is thus laid bare. The only reason cannabis is illegal, or defined as illegal, is statute. Hemp is a carveout and is not marijuana. Cannabis prohibition was invented by politicians, and can be eliminated or scaled back by them. Marijuana can be redefined statutorily as cannabis with THC of more than 1.0 percent, or 5.0 percent, or 10.0 percent. There is nothing in Amendment 64, or anywhere else, that permanently requires marijuana to be illegal, and nothing that locks in the statutory definition of marijuana or of hemp to any amount of THC.”

So Amendment X, he argues, “would allow the legislature to re-criminalize hemp.”

Another critic, Matt Kahl, a certified Colorado hemp breeder, worries about what might happen if a mega company like Monsanto is able to come up with a modified hemp plant with 0.0 percent THC and the definition of industrial hemp is left to lawmakers. “If they choose to lobby our legislature for the reduction of the statutory definition all the way down to 0.0, that would completely eliminate all regular citizens and programs from developing hemp,” he has said. “You’d have to buy seeds from one of those agricultural giants.”

Tim Gordon, a hemp farmer in Boulder and president of the Hemp Industry Association, says his organization will roll out an educational campaign to ensure voters know what a vote for the measure means.

Under new laws voters supported here in 2016, changing Colorado’s Constitution is harder than in years past; questions like the one about hemp require 55 percent of the vote to pass rather than a simple majority of years past. 

“Is it an uphill battle? You’re damn right,” Gordon says. “But is it a battle that this industry will go to bat for? You’re damn right.”

*CLARIFICATION: We’ve clarified this sentence to better explain what hemp is. 

8 COMMENTS

  1. I know that the difference between Hemp and Marijuana can be confusing. I just wanted to point out that hemp is not ” the non-psychoactive part of a cannabis plant”
    Hemp is the the non-psychoactive cousin to Marijuana. Both are cannabis plants.
    Your article does explain that later to some extent, but it could lead to confusion.
    Other than that, Thanks! There are a lot of people, even in the hemp business that didn’t know it was on the ballot until they saw it there. And now they don’t completely understand it. You article did a good job of showing both sides of the argument. I personally believe the con arguments to be pretty minimal compared to the pro benefits. IF the legal limit does change at the Federal level, it still will never be to a point that you could get high.
    However, IF the Federal definition changes, other states like Kentucky would an advantage over Colorado producers.

  2. Colorado: VOTE “NO” ON Amendment X
    Hear me (CPA Friend of the First) out: The Colorado General Assembly’s supposed point according to the Colorado voter Blue Book:
    “Argument For: Colorado is the leading producer of industrial hemp in the country and the only state with a definition of industrial hemp in its constitution. Striking this definition will allow Colorado’s hemp industry to remain competitive with other states as the regulatory landscape evolves for this crop.”

    (This bill was written by the GA w/o any public support and 2 groups registered against it.)

    The General Assembly say the Federal Government might/could (sometime later in life) raise the THC limit in the definition of hemp to 1% (the 2018 Farm Bill missed it’s Sept 30th, 2018 deadline), which they say will limit our hemp industry as our constitution defines it at “three tenths percent” (.3%) dry weight.

    They are going to help whom by removing hemp from the Colorado Constitution? The current ‘industry’ is successfully growing more hemp than any other state, after having jumped through the extra and unnecessary hoops law enforcement ‘convinced’ the AG Dept. to put up in the last 3 years.

    “Argument Against: Colorado voters added the definition of industrial hemp to the Colorado Constitution through the initiative process. The measure may deviate from the voters’ original intent.”

    When voters passed A64, they decided that the Feds and the Colorado General Assembly were behind the times (and the continued purveyors of propaganda that caused the longest WAR in the history of the USA with 1937 Reefer Madness/Prohibition). The majority of the voters in Colorado gave the feds and the GA the middle finger when they voted yes on A64.

    The GA had been ‘considering’ industrial hemp (only through force feeding by grassroots activists and Sen. Casey) cultivation/production since 1994 when Senator Lloyd Casey proposed legislation that the majority of the GA were afraid to vote for and again in 1996. When it was on the verge of final committee passage, the DEA/feds faxed a ‘threat’ letter to the GA committee members minutes prior and it was killed.

    It’s been 25 years and w/o the people’s initiative process and a statewide vote, Colorado wouldn’t now be the largest hemp cultivating state in the USA.

    Currently the 2016 federal farm bill says: “The growth and cultivation of industrial hemp may only take place in accordance with an agricultural pilot program to study the growth, cultivation, or marketing of industrial hemp established by a State department of agriculture or State agency responsible for agriculture in a State where the production of industrial hemp is otherwise legal under State law.” And the industrial hemp language in the Farm Bill can and probably will change every two years, just like it can be removed altogether.

    “In short, the current federal law authorizes farming of hemp – by research institutions, or within state pilot programs – for research only. Farming for commercial purposes by individuals and businesses remains prohibited.” Westwood

    If the GA really wants to do the right thing and or keep the industry competitive for the hemp farmers/manufactures they can simply stop enforcing the .3% THC limit and do something intelligent like base rules and regs on intended end use and forget about nonsensical, unscientific THC limits on industrial hemp. Or they can offer voters an amendment to increase the THC limit in our constitution or remove any THC limit, instead of removing industrial hemp altogether. Does the THC content really matter if the crop is used for non-consumable industrial products like paper, concrete or fiber?

    Section 5 (J) of our constitution already says: “Not later than July 1, 2014, the GA shall enact legislation governing the cultivation, processing and sale of industrial hemp.”

    The GA appropriately ‘gave’ the Agriculture Dept. regulatory authority of industrial hemp. I went to and recorded the first two Ag. meetings on hemp, where the Dept. clearly stated hemp would be regulated like any other crop and not like “marijuana”. Two years later a group of DA’s and law enforcement officers formed an ‘advisory committee’ that came up with repressive (over) regulation and licensing fee’s that farmers are successfully complying with.

    The one striking thing the GA/Ag Dept. cannot due is deny anyone applying for a license to grow industrial hemp. Take hemp out of the state Constitution and the GA and/or the Feds will deny (via over-regulation/fee’s) 99% of us the opportunity to grow a non-toxic plant/renewable resource/probable tree of life, just like federal law currently does.

    VOTE “NO” on Amendment X

    And it’s not as if the GA are concerned about writing statutes that are contrary or defy to our constitution. Look at HB17-1220 that violates A20 by attempting to ‘limit’/violate medical cannabis patients to 12 plants per property, 17 years after ‘whatever is medically necessary’ language passed into our Constitution, no matter a single patient needs more than 12 or there is more than one or two patients living at the property or a person is a caregiver. The same bill also violates A64 when more than 2 adults over the age of 21 reside on the same property.

    FYI: We know from Janet Reno: The United States Constitution protects “we the people” from federal enforcement if “we the people” write and vote in laws, (contrary to federal law) ourselves, which is what CO A64 is, a people’s initiative. This is why the feds never officially ‘shut down’ CA 215 or CO A20 or any other state voted pro cannabis language.

    Janet Reno made it clear to Dennis Peron (author Prop 215) and the CA Governor after Prop 215 passed: it’s un-Constitutional for the legislature to create and pass laws on their own that are contrary to federal law and legislators can be federally charged and even imprisoned for doing so.

    Their attempt to remove hemp from the state Constitution is the state government taking back control of hemp from “we the people” and give it back to the Feds/themselves–the exact opposite of the voters intent.

    IF industrial hemp is removed from our state Constitution, the GA has to follow federal law per the US Constitution, or face criminal charges. It’s currently unlawful under federal law for hemp farmers or a hemp industry to exist in CO.

    FYI: I co-authored I70, which was 1 of 3 other pro cannabis titled ballot initiatives (that didn’t have funding from 1% er’s like soros/MPP/DPA/ASA/NCIA/NORML to pay signature gatherers and make ballot status) that offered ‘competing’ language to A64 (then I30). I voted “NO” on A64 but had a hand in on shaming A64 attorneys/proponents/authors into adding hemp to A64 prior title submission.

  3. Good article, but still left with a difficult choice on the ballot. I fully support the hemp industry and I want Colorado to continue as a leader in all facets of the cannabis industry.

  4. I disagree @Erik and @SteveB — this is not a good article. It’s as meandering and poorly written as the amendment itself. Less stream of consciousness, more concise language please.

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