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.
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.