Nebraska Nonsense: Trojan Horse or Cash Crop?

JurisdictionNebraska,United States,Federal
CitationVol. 99
Publication year2021

99 Nebraska L. Rev. 509. Nebraska Nonsense: Trojan Horse or Cash Crop?

Nebraska Nonsense: Trojan Horse or Cash Crop?

Comment [*]


I. Introduction .......................................... 509

II. Background ........................................... 511
A. Nebraska Was a Leading Hemp Producer Until Prohibition ........................................ 511
B. The Federal Government Began Hemp Reform withthe 2014 and 2018 Farm Bills ..................... 513
C. Industrial Hemp and CBD Is Now a Legal, Legitimate, and Booming Industry ................. 514
D. Nebraska Passed a 2014 Hemp Bill and the Nebraska Hemp Farming Act in 2018 .............. 517
E. State Senator Lowe Argued the NHFA Will Lead to Legal Marijuana and More Drugs for Children ..... 518

III. Analysis .............................................. 519
A. The NHFA Is Not a Trojan Horse for Legal Marijuana ......................................... 519
B. Hemp Is a Commercially Viable Crop that Nebraska Farmers Should Be Able to Grow .................. 522
C. Nebraska's Marijuana Laws Need Reform .......... 526

IV. Conclusion ............................................ 532


When I was a young boy, my father reminisced about driving through the Nebraska countryside in the 1970s. He told me about the vast fields of green he saw, only, they were not fields of corn. Yes, Nebraska has a long history with hemp. In fact, local hemp even


earned its own nickname: "Nebraska Non-sense." [1] Despite this unique history, it has been illegal to grow hemp in Nebraska for almost a century-until recently.

In 2019, responding to the recent trend of hemp legalization in the U.S., Nebraska lawmakers weighed the question of whether Nebraskans should be allowed to grow hemp. LB 657, or the Nebraska Hemp Farming Act (NHFA), sought to align state and federal law on industrial hemp and open new commercial markets for farmers and businesses for the production and sale of hemp products. [2] Advocates of industrial hemp claimed a forthcoming "green rush" fueled by the growing market for cannabidiol (CBD), while others claimed the bill was a slippery slope for the legalization of marijuana. [3] Specifically, State Senator John Lowe of Kearney argued that the NHFA was a "Trojan horse" for legal marijuana and would increase children's access to drugs. [4] However, the bill passed on a 43-4 vote. On May 30th, 2019, Nebraska Governor Pete Ricketts signed the bill allowing farmers to cultivate hemp. [5]

This Comment will argue that the NHFA is not a slippery slope for legal marijuana. The slippery slope argument is tenuous given Nebraska's history as a former forerunner in hemp production and a top agricultural state with temperate, conservative values. This unique history enables citizens, judges, and legislators to draw and maintain a meaningful line between hemp and marijuana.

Part II of this Comment provides background information about industrial hemp, Nebraska's own history with it, and the current CBD boom. Section III.A argues that the NHFA is not a slippery slope and will not increase children's access to drugs. Rather, the NHFA better regulates both hemp and marijuana. Section III.B argues that Nebraska lawmakers correctly passed the NHFA because industrial hemp provides an economic opportunity to Nebraska farmers who should not be precluded from taking advantage of such an industry. Section III.C argues that even if the NHFA leads to future marijuana legislation, the state will benefit because Nebraska's current marijuana laws offer poor guidance on how to prosecute today's vast market of illegal tetrahydrocannabinol (THC) goods entering the state from neighboring states such as Colorado. This has led to inconsistent and unjust penalties. Regardless of whether marijuana is legalized, the state's laws are outdated and in need of reform. Ultimately, this


Comment argues that Nebraska lawmakers were reasonable in passing the NHFA because hemp cultivation should not be illegal and the Act better regulates both hemp and marijuana.


A. Nebraska Was a Leading Hemp Producer Until Prohibition

Hemp is botanically known as Cannabis sativa L., the same as marijuana. [6] The ancient Chinese were the earliest reported cultivators of hemp, producing it as a textile fiber and food as early as 500 A.D. [7] The Chinese also made the oldest surviving paper from hemp fiber over 2,000 years ago. [8] In America, European colonists in the mid-1600s produced industrial hemp to make twine, rope, and linen. [9] In fact, George Washington and Thomas Jefferson were "[t]wo of the strongest advocates" for industrial hemp. [10] By 1914, hemp was the most "extensively" used industrial fiber in the county, with the United States using 10,000-15,000 tons a year. [11]

In Nebraska, the earliest commercial production of hemp began in 1887 in Fremont. [12] Prior to commercial production, hemp grew abundantly as a "wild plant" throughout the Midwest. [13] In fact, hemp grew particularly well in eastern Nebraska because of the "deep clay-loam prairie soil underlain with lime rock." [14] The "prairie soils in eastern Nebraska" gave hemp producers a natural advantage because it provided for "more uniform crops . . . after the first year" of cultivation. [15]

Havelock, Nebraska, was also a site for hemp cultivation before the turn of the century. [16] The hemp produced there demonstrated that


hemp was, and is, "remarkably" resilient to diseases caused by fungi. [17] According to the 1900 U.S. Census of Agriculture, Nebraska grew 683 acres of industrial hemp, [18] the third most in the nation behind Kentucky and Illinois but ahead of California. [19] In the early 1900s, however, nationwide production began to decline due to the difficulty in securing a proper labor force and the lack of "labor-saving machinery" that other industries enjoyed, such as tobacco, corn, andraising livestock. [20]

Despite its history with hemp production, Nebraska prohibited hemp, like alcohol, ahead of federal prohibition. (The state was already dry before the 18th Amendment took effect.) [21] In 1927, amidst a wave of prohibition laws being passed in surrounding states, Nebraska prohibited all forms of hemp. [22] Ten years later Congress passed the Marihuana Tax Act, the first federal law addressing cannabis. [23] The Marihuana Tax Act distinguished hemp and marijuana, and specifically regulated marijuana (effectively prohibiting it). [24] Therefore, hemp remained legal under federal law. [25] "In fact, during World War II, the federal government encouraged production of hemp for fiber and oil," [26] particularly in the Midwest. [27] Because of ambiguities in the Act, however, most hemp producers did not want to chance


being penalized for marijuana production. [28] Consequently, hemp production declined despite its legality. [29]

In 1970, Congress, under the Nixon Administration, passed the Controlled Substances Act (CSA), which is the federal regime that prohibits marijuana today. [30] The CSA categorizes substances in "schedules" based upon accepted medical use and potential for abuse. [31] Marijuana is categorized as a Schedule I substance, which is considered the most dangerous schedule, and therefore, the most regulated classification. [32] But the CSA did not distinguish between marijuana and hemp, so Congress gave the Drug Enforcement Agency (DEA) criminal jurisdiction over all forms of cannabis sativa. [33] Up until the last six years, the DEA has operated on the premise that hemp and marijuana are indeed the same, effectively banning both. [34]

B. The Federal Government Began Hemp Reform with the 2014 and 2018 Farm Bills

Almost a century after laws began effectuating a prohibition on hemp, the U.S. was one of the only industrialized nations that prohibited industrial hemp. [35] Beginning in 2014, however, Republican Senate Majority Leader Mitch McConnell began advocating for hemp legalization under the purview of state research programs. [36] As a result, on February 7, 2014, President Barack Obama signed the Agricultural Act of 2014 (the 2014 Farm Bill). [37]

The 2014 Farm Bill did not remove industrial hemp from the federal controlled substance schedules. Rather, it defined "industrial hemp" under the CSA as cannabis with less than 0.3% THC "on a dry


weight basis." [38] Moreover, section 2606 of the bill authorized hemp research and pilot programs by state departments of agriculture and institutions of higher education, provided the research be done under "an agricultural pilot program or other agricultural or academic research" and the activities are allowed under the relevant state's laws. [39] By 2017, thirty-eight states and Puerto Rico considered industrial hemp legislation; nineteen states either enacted such legislation or authorized research programs under the 2014 Farm Bill, [40] including Nebraska. [41]

However, still unsatisfied, Mitch McConnell pushed to have hemp...

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