Dank Mature Stalks

Another crazy loophole in everybody's favorite federal statute

Very complex statutes are often problematic. Poorly written ones always are. The CSA is both. The result? Unintended consequences, loopholes, absurdities, and confusion galore. Matt and I have pointed out many examples in previous posts:

1. Many controlled substances occur naturally in plants and fungi. Sometimes, the CSA lists both the plant/fungus and the intoxicating substance it contains as distinct controlled substances—opium poppy and opium alkoloids, peyote and mescaline, coca leaves and cocaine, etc. Other times, it lists only the intoxicating substance—psilocybin and psilocybin mushrooms, cathinone and khat, mescaline and the San Pedro cactus, etc. As Matt explained here and here, this makes it possible to argue (persuasively, in our view) that the unlisted plants/fungi aren’t in fact controlled substances at all.

2. The same inconsistent approach to the listing on the schedules of plants and fungi that contain intoxicating substances on the one hand and the intoxicating substances themselves on the other hand has also given rise to the 167:1 problem in the marihuana/THC context, which I wrote about here.

3. The 2018 Farm Bill legalized “hemp” by defining that term and then amending the CSA’s definition of marihuana to exclude it. But because the definitions are poorly worded, they effectively legalized weed nationwide under federal law in the form of “intoxicating hemp.” Matt addresses this problem and contests the soundness of arguments in favor of the legality of so-called hemp-derived delta-9 THC here.

4. Another upshot of the 2018 Farm Bill is that cannabis seeds, even the seeds of high-THC plants, now qualify as “hemp” and are therefore not subject to DEA control as I explained here.

5. The criteria for each of the CSA’s schedules in 21 U.S.C. 812 are internally incoherent as Matt and I have explained at length here, here, and elsewhere.

6. The Analogue Act is pretty much useless to prosecutors in practice as Matt explained here.

I could keep going, but you get the idea. The CSA is a terrible statue in serious need of reform. Of course, whether a particular unintended consequence of a statute is a problem or a gift from above depends on who you ask. To illustrate that point, I thought I’d introduce another unbelievable loophole in the CSA.

This one is hiding in plain sight, right there in the definition of marihuana itself in 21 U.S.C. 802(16):

(16)(A) Subject to subparagraph (B), the terms "marihuana" and "marijuana" mean all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.

(B) The terms "marihuana" and "marijuana" do not include-

(i) hemp, as defined in section 1639o of title 7; or

(ii) the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

As you can see, the definition proceeds in two parts: subparagraph (A) lists out everything that qualifies as marihuana (or marijuana), but clarifies that the list is “subject to subparagraph (B)”; subparagraph (B) then lists a number of thing s that marihuana (and marijuana) “do not include.” The first thing excluded under subparagraph (B) is “hemp, as defined in [7 U.S.C. 1639o].” The second is a list of various cannabis-related materials, including the one I’d like to focus on here: “the mature stalks of such plant.”

The important thing to notice is that because of the way 7 U.S.C. 1639o defines “hemp,” the hemp exclusion applies only to cannabis-related material that contains not more than .3% delta-9 THC on a dry-weight basis. The second exclusion—the one that excludes “the mature stalks of such plant”—has no THC limit. So imagine a cannabis plant with high delta-9 THC concentrations in its mature stalks. That plant’s mature stalks wouldn’t qualify as “hemp” because their THC concentration would exceed the .3% threshold. But it wouldn’t qualify as marihuana either. Such a dank mature stalk would not be a controlled substance subject to DEA control under the CSA, and a company selling it would not be subject to the burdens of 26 U.S.C. 280E or, presumably, the litany of burdens cannabis companies face when trying to access banking and financial services.

Now, I’m not an expert in plant breeding and genetics, but I have consulted some friends who are. They tell me that it is at least theoretically possible to create such a plant, though I’m not encouraging anyone to try. If somebody did, I assume Congress would get around to closing this loophole some time after it deals with the intoxicating hemp bonanza that it instigated with the 2018 Farm Bill. If you ask me, though, fixing the many absurdities that emanate from this broken statutory scheme one at a time is quickly becoming an awfully embarrassing—not to mention deadly—game of whack-a-mole for Congress.

Perhaps it’s time to abandon that obviously doomed approach and start making the broader reforms necessary to bring some long-overdue sanity to federal drug policy.