By Rebecca Gourley, Covington Reporter

With the passage of I-502 in 2012, development of marijuana legislation and marijuana research has surged to unprecedented levels. In an attempt to clearly translate new laws and research, the Reporter and Courier-Herald will examine these issues in a four-part series. Part three of this series tackles the history of hemp and the causality of marijuana prohibition.

Hemp is neither a drug nor a hallucinogen, but it’s still considered a controlled substance by the federal government. However, a combination of new federal and state laws passed in the last year could eliminate restrictions on growing hemp in Washington.

In the early 1600s, hemp was used as legal tender in what is now Pennsylvania, Virginia and Maryland, according to the Public Broadcasting Service Frontline website. The Virginia Assembly made it a requirement for farmers to grow hemp because of its versatility.

That changed in 1970 when hemp was lumped with marijuana and put onto the Controlled Substances Act. Until February 2014, no one has been allowed to grow hemp in the U.S. because it was considered a Schedule I drug, alongside its cousin, pot.

Before that happened, hemp was used to create rope, sails and clothing. In fact, the word canvas comes from the word cannabis.

Hemp contains virtually no tetrahydrocannabinol (THC), the psychoactive drug found in marijuana, even though the two come from the same plant.

Hemp is defined as the stalks, stems and sterilized seeds of cannabis sativa that contain less than 0.3 percent THC concentration, dry weight, and marijuana is the leaves, flowers and viable seeds of the same plant.

So how did hemp get rolled into the same joint as marijuana when it has no psychoactive ingredients?

Early reefer

Let’s go all the way back to the early 1900s, when the Mexican Revolution ended. According to PBS, people traveled up from Mexico and into the U.S.  and brought marijuana for recreational use with them. Once the drug became associated with the new immigrants, fear of both started setting in.

According to Sunil Aggarwal, M.D., Ph.D.,a cannabis researcher at New York University and a University of Washington graduate,  William Randolph Hearst, a newspaper publisher, printed sensationalized stories to spread fear about marijuana and the violent tendencies of its users.

The Hearst newspapers “began to use race-laden language to frighten people about cannabis,” Aggarwal said in the 2014 documentary “Hooked: Illegal drugs and how they got that way – Marijuana”. The film was originally aired on the History Channel, but it can also be found on YouTube.

Like Hearst, who used his newspapers to promote fear about marijuana, filmmakers did the same. Reefer Madness, produced in the late 1930s, was a propaganda film used by the government to incite fear in parents to ensure their kids didn’t get their hands on the “killer weed.”

Around that same time, lawmakers passed the Marihuana Tax Act of 1937 (marijuana spelled with an ‘h’ reflects the Mexican Spanish etymology according to the Oxford English Dictionary). The act didn’t make marijuana illegal, however, it sought to control it by implementing excise taxes and requiring anyone who wanted to grow, possess or distribute it to register with the federal government. The act also included penalties for people who did not pay the taxes and/or register with the government. The penalties were steep, up to a $2,000 fine (nearly $33,000 in today’s currency) and five years in prison.

But there was a problem. The government still needed hemp for the war effort, so production of cannabis continued. According to PBS, the government promoted hemp cultivation with its “Hemp for Victory” program during World War II.

For this reason, under the Marihuana Tax Act, the federal government’s definition of pot excluded the parts of the plant, hemp, that were used for the production of goods. The first line of the act states, “…The popular and therapeutic uses of hemp preparations are not categorically prohibited by the provisions of the Marihuana Tax Act of 1937.”

A controlled substance

In 1969, the Supreme Court determined in Leary v. United States that the Marihuana Tax Act was unconstitutional because it violated the 5th Amendment right against self incrimination.

Shortly thereafter, the Controlled Substances Act was passed into law in 1970.

Marijuana was added to the Schedule I list in that act. Schedule I drugs are considered to have a “high potential for abuse… no currently accepted medical use in treatment” and have “a lack of accepted safety for use under medical supervision.”

The definition of marihuana (still currently spelled with an ‘h’ in today’s Controlled Substances Act) remains the same as it did in the Marihuana Tax Act and doesn’t encompass hemp, technically speaking.

When asked whether the Drug Enforcement Administration distinguishes between hemp and marijuana, spokesperson Jodie Underwood said via email, “The CSA (Controlled Substances Act) does not.”

The DEA’s interpretation puts the THC-free plant on the Schedule I controlled substances list, despite it not being a drug.

According to a UCLA Law Review article from 2009, the Controlled Substances Act “does not make growing hemp illegal; rather it requires prospective growers to obtain registration from the DEA.”

The article also stated the DEA “unilaterally rejects almost all such applications.” The only two sites that were issued permits between 1999 and 2007 were using hemp for research, and one of them was put under such restrictive conditions that planting the crop was very expensive, the article said.Christine Kolosov, the author of the law review article, argued the DEA cannot “legitimately deny or delay licenses to cultivate industrial hemp.”

New legislation

More recently, under section 7606 of the Farm Bill signed into law by President Obama in February 2014, higher education institutions and state departments of agriculture may grow or cultivate industrial hemp for research purposes if it’s allowed under that state’s law.

According to Vote Hemp, a nonprofit and advocate for hemp, if hemp cultivation is allowed under state law and a farmer in that state is registered and certified by the state’s department of agriculture, that farmer does not need a license from the DEA to grow hemp for research purposes.

The Farm Bill also defines hemp separately from marijuana, but Underwood didn’t explicitly say whether the Farm Bill supersedes the Controlled Substances Act.

In the language of Initiative 502, the same distinction between hemp and marijuana was made. It stated, “(marijuana) means all parts of the plant Cannabis, whether growing or not, with a THC concentration greater than 0.3 percent on a dry weight basis.”

Farmers in the U.S. are still not allowed to grow hemp commercially or to produce hemp products for consumers. Currently, all hemp and hemp products intended for retail sales are imported — mostly from Canada.

In Washington, however, hemp is still not grown even for research purposes. Unless the DEA starts distinguishing hemp from pot, or the Farm Bill is found to override the Controlled Substances Act, industrial hemp will still not be legal to grow in the Evergreen state until local lawmakers say it’s OK.

That approval could happen this session if Senate Bill 5012 gets the green light in Olympia. The bill would make hemp legal to grow commercially and manufacture into goods. It would put hemp on the same level as any other agricultural product, such as cotton or wheat.

SB 5012 would also allow Washington State University to “study the feasibility and desirability of industrial hemp production in Washington.”

Sen. Brian Hatfield, D-Raymond, is the primary sponsor on the bill but he has bipartisan support from several Republican senators including Jim Honeyford and Doug Ericksen.

Reporter Deanna Isaacs contributed to this report.