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The Marihuana Tax Act of 1937


Mr. Hertzfield: Mr. Chairman, I would like to be heard briefly.

The Chairman: Will you give your full name to the reporter and state whom you represent?

Mr. Hertzfield: My name is Joseph B. Hertzfield; I am manager of the feed department of the philadelphia Seed Co., of Philadelphia, Pa.

I want to say at the outset, Mr. Chairman, that our firm is heartily in sympathy with the aims and purposes of this bill, and we have no desire to become parties to spreading this drug around the country.

We have been manufacturers of feeds and mixed birdseeds for many years, and in those mixtures hempseed is a very important item.

Hempseed us very beneficial because it adds the proper oil to the mixture of and promotes the growth of feathers, and it is also a general vitalizer. Birds lose their feathers and hempseed aids considerably in restoring the bird's vitality quickly. Otherwise there is a delay of two or three months before the bird gets back into condition, and the hempseed helps to accomplish that purpose.

I want to second what Mr. Scarlett has just said, and to express our willingness to have the seed sterilized so that it cannot be grown and thus cause any harm.

This agreement which has been referred to, that we reached yesterday with Mr. Hester, is very satisfactory to us, and I would like to ask favorable consideration of the committee for that agreement.

Mr. Crowther: Would the sterilization which would prevent the germination remove such of the drug as exists in the cull or the outside cover of the seed which is now sometimes used?

Mr. Hertzfield: I cannot answer that. We have seen evidence by eminent authorities that there is not any of the drug in the seed.

Mr. Crowther: Someone testified that there are some particles of the resin on the outside shell of the seed.

Mr. Hertzfield: Is that when the seed is mature?

Mr. Crowther: I understand so.

Mr. Hertzfield: I have never heard of anybody smoking the seed.

Mr. Crowther: I thought if there were some particles of resin on the outside of the seed it might have the same effect as smoking.

Mr. Hertzfield: In one of these exhibits you have here there is some seed that has formed but is not matured, and that is possible. The type of seed that we use is this seed here [indicating exhibit]. That is this brown seed dried and matured.

Mr. Crowther: You think there is no likelihood of it being anything of that kind?

Mr. Hertzfield: I doubt it.

The Chairman: When it comes to your possession is the shell removed?

Mr. Hertzfield: It is just like that brown seed. That is the way we use it. That is matured and dry seed.

The Chairman: Is there any of the residue on the seed when it comes into your possession?

Mr. Hertzfield: No; that is gone. When this seed is matured and dry we grind the shell off in the threshing operation.

I had occasion to write to the Bureau of Plant Industry in the Department of Agriculture about this in 1935, and under date of October 4, 1935, I had a communication from F.D. Richey in which he said:

The female inflorescence of the plant possesses physiological properties that are the basis of abuse as a potent drug. The seed is considered to be devoid of such properties.

It has been used for such purposes for years, and I have never heard of any ill effects. On the contrary, it seems to be extremely beneficial.

We would like to have the privilege of having the use of that seed until it is definitely proven that the sterilized hempseed should not be used.

Mr. Disney: As I Stated a while ago, out in our country marihuana is known as an ordinary weed that grows in back yards, and in any place where plants will grow.

It is not the ordinary field hemp that is used for fibers?

Mr. Hester: It is the ordinary field hemp growing wild, or at least without the extensive cultivation necessary to provide good fiber. The committee may have been confused because we have used the term marihuana in this bill.

The reason for that is this. This is the hemp drug, commonly known in Mexico and in the United States as marihuana. It is just a colloquial term in Mexico, as I understand it, and means the flowering tops and leaves of the hemp plant, which may be eaten or smoked. We could not make Cannabis sativa. L., the hemp plant, the subject of the taxes contained in this bill because it was not intended to tax the whole plant, but merely the parts of the plant which contain the drug. The parts of the plant which contain the drug are commonly known as marihuana, so taxes were imposed upon "marihuana."

In addition I might say that some people say that the marihuana seed should be called fruit, because, botanically speaking, it is a fruit, not a seed. However, it is known commercially and commonly as a seed, and that is the reason we have used the term.

Mr. Disney: I notice that in section 1, at the beginning of the bill, in subdivision (c) it says that the producer is one--

who (1) plants, grows, cultivates, or in any way facilitates the natural growth of marihuana; (2) harvests and transfers or makes use of marihuana; or (3) fails to destroy marihuana within 10 days after notice that such marihuana is growing upon land under his control.

To what extent do you expect to go along that line, where it is an ordinary weed?

Mr. Hester: The person on whose land the plant was growing wild would be notified by the Treasury Department that he has this plant growing on his land, and if he did not destroy the weed, he would become a producer under the bill and subject to the tax. He would not be committing a crime if he failed to cut it and would merely have to pay a tax.

Mr. Lewis: Suppose he is not raising it for the market.

Mr. Hester: If a person cultivates it, he would be producing it; he would become a producer under the bill.

Mr. Lewis: Without raising it for the market?

Mr. Hester: That is right. That is the only way it can be handled, I believe. Since this plant will grow wild, a person might evade the occupational tax on producers by stating to the internal revenue agent that the plant was growing wild.

Mr. Lewis: You mean that if he goes out and digs it up as a weed?

Mr. Hester: No; if you have a farm and it is growing on your farm wild, and the Government agent sees it growing there, and they notify you what it is, then you are required to destroy that. If you do not, then you become a producer and subject to the occupational tax.

Mr. Lewis: How widely distributed is it as a weed?

Mr. Hester: Mr. Anslinger said it will grow in practically all the States wild.

The Chairman: I would like to know about the process of destroying it, if it grows wild on a man's farm. I have had considerable experience in trying to destroy weeds, and it requires a lot of expense. Who would defray the expense required in fighting and destroying that weed.

Mr. Hester: This is the thing to remember, that if he did not destroy he would simply become a producer under this bill and have to pay a small occupational tax, and the Government would know it is there. He does not have to destroy it if he does not want to, but if he does not, he pays a small occupational tax.

Mr. Lewis: How much?

Mr. Hester: $25 a year.

Mr. Reed: I know something about farming, although I am not familiar with the manner in which this plant spreads. I know that we have tried on our farms to keep out certain weeds, but could not do it because the expense is too great.

You will have a revolution on your hands if, as you say, this plant grows generally throughout the country and you try to charge the farmers a tax of $25, as you said.

Mr. Hester: Suppose the poppy from which you extract opium grew wild; you would have exactly the same situation. That is the only way in which it can be controlled.

Mr. Reed: I think that is the most serious question that has come up in connection with this bill.

Take, for instance wild carrots. I defy any farmer to eliminate them unless and until he summer-fallows the ground.

Mr. Hester: The purpose of this is not to put the producer to any expense where it grows wild, but to require him to notify the Government he has marihuana growing on his place. The way we do that is by putting on the occupational tax. Do you think farmers would be willing to cooperate with the Government in stamping out this marihuana by paying a small tax?

Mr. Reed: Do you imagine that all through our country where a farmer has, say, 25 acres, they are going to pay an occupational tax of $25?

Mr. Hester: You gentlemen here in congress, of course, can fix the occupational tax at any amount that you see fit. That is merely a suggestion.

Mr. Disney: I would like to know this: When I see these weeds growing as they do in our part of the country, I imagine there is enough marihuana growing in one back yard to enable a man to get on several hilarious drunks. I would like to know what happens when that weed is growing there.

Mr. Hester: The Government has to notify you under the bill.

Mr. Disney: I am trying to think of it and get some information in a practical way. Of course, I am in favor of the main purpose of the bill-- to stamp out the use of the drug.

Mr. Reed: I would go the limit to accomplish that purpose also; but you have a very serious problem here, if this grows wild as many weeds do.

Mr. Hester: Here is the situation. Most of you gentlemen are lawyers, and you know you have to have an occupational tax to have a revenue bill. You would have to impose some kind of an occupational tax on a farmer. What the amount of the occupational tax will be is entirely a matter for the committee to decide.

We only require them to notify the Government.

Mr. Disney: This is just a start, and it ought to be a good start. But are you not going pretty far when you make a man a producer when he innocently grows wild marihuana on his land?

Mr. Hester: If you do not take wild marihuana into consideration, you cannot control this at all. That is all this does.

If I were an inspector and I came to you, and I knew where the marihuana was, and told you had it growing on your place, you might say, "I am not going to destroy it; that is very expensive. But I will pay a small occupational tax." That is when the Government knows it is growing on your place.

Mr. Reed: The they will destroy it?

Mr. Hester: Congress has made appropriations to the Department of Agriculture to permit the inspectors of that Department to go throughout the country and destroy plants which are dangerous to farmers because they produce plant diseases. If you can suggest some substitute, we will be very glad to have it.

Mr. Disney: I do not know about that.

Mr. Reed: I do not want to weaken this bill; I want to help you to carry out its purpose in every possible way.

Mr. Disney: I do not want to weaken it, either.

Mr. Reed: But I can see a lot of trouble unless this is properly worked out, because if you are going to start on a program of exterminating some weed, a weed that grows generally throughout the United States, you are undertaking a program that will be difficult and expensive.

Mr. Hester: In 1914 the Harrison Narcotic Act provided for doing the same thing, which included the word "producer", and the only thing is that it so happens poppies cannot be grown in the United States.

Mr. Reed: That is quite different.

Mr. Hester: It does not seem to me to be an undue hardship to put a small occupational tax on a person who has this growing wild on his land. The Government could get no information whatsoever from him otherwise. It is the only way the Government could get any information as to where this is growing wild.

Mr. Reed: But the next step is to destroy this weed?

Mr. Hester: Not necessarily to destroy it, but so that the Government will know where it is. There is no provision in the bill that requires them to destroy it. It says to the farmer, if you do not destroy it within 10 days, you will have to qualify as a producer and pay a small occupational tax.

Mr. Reed: What is the Government going to do then; put a man there to watch it?

Mr. Hester: No.

Mr. Reed: How will it stamp it out?

Mr. Hester: In the final analysis, if the man, the farmer, does not want to pay the small occupational tax, he will have to destroy it himself, or Congress will have to make an appropriation for the Department of Agriculture which will permit them to send people throughout the country to stamp it out.

Mr. Crowther: they could make them cut it down before it reaches the flowering stage, and that would do it, would it not?

Mr. Hester: Yes; that is right. We are proceeding with a new thing, and it is a serious menace. They would probably do it voluntarily; we cannot require them to do it unless we have them pay a small occupational tax.

Mr. Reed: You are looking at it from the Government-bureau point of view, and I am looking at it from the practical farmer's side, with this weed spreading all over creation.

If this weed has spread so that it has become a menace, the farmer will have to hire men to go through his meadows and cut out this weed, and the expense will be greater than you realize.

Does this hemp spread as other weeds do?

Mr. Hester: Dr. Dewey is the botanist, and I would like to have him make a statement in reference to that.

Mr. Reed: I want to get at the bottom of this thing before we get into a lot of trouble.

Mr. Fuller: Do you know whether or not just cutting out this weed will kill it?

Dr. Dewey: I think it can be killed easily. It is, in fact, a plant growing only from seeds, and can be exterminated once and for all by merely cutting it down before it goes to seed.

Mr. Fuller: If the seed is on the ground, it may be covered up and may keep covered up for years.

Dr. Dewey: Of course, it is all introduced from the type that is distributed from birds, and the birdseed does come up year after year from self-sown seed, but the type that is grown for fiber production does not.

For more than 35 of the years that I was working on these things I was working on the fibers.

Mr. Fuller: You do not mean to convey the idea that one cutting with a sickle would eliminate it, do you, because, as I understand it, it grows in proximity to river banks and creeks.

Dr. Dewey: Ordinarily one cutting would eliminate it. There might be some seeds that would remain the next year. I have seen it growing year after year in the same place when it was not cut because no stock would eat it.

Mr. Fuller: Does it grow in wild land?

Dr. Dewey: No; it grows in open land, sometimes at the edge of the woods, but not in the woods.

Mr. Fuller: It grows around creeks and river banks?

Dr. Dewey: Yes; on open land and waste land.

Mr. Fuller: That would mean as a general rule that you could not cut it with a mowing machine.

Dr. Dewey: Ordinarily it is rarely in areas large enough where you could use a mowing machine to cut it.

The largest area that I ever saw it growing in was at the Twin Cities in Minnesota, where it grew year after year, near a railroad, and I think there was a quarter of an acre of ground there.

Mr. Lewis: Mr. Hester, have you fully canvassed the proficiency of a scheme that will limit the penalties to instances where it is grown for market, or where it is picked for market?

Mr. Hester: You mean distinguishing between a producer so-called under the act as a man on whose land it grows wild, and one who cultivates it?

Mr. Lewis: Yes.

Mr. Hester: No; we have not made a distinction, but we will be glad to consider that.

Mr. Lewis: I wish you would because it seems to me you might draw a distinction like that. This plant might grow wild and some man might want to pick it for the market, and then a farmer would be on notice, and he would probably be asked to pay for it. In that instances the law applies. It is the marketing of it at last that determines it.

Mr. Vinson: But would you not have to inject the question of intent?

Mr. Hester: Here is the situation.

Mr. Vinson: The gravamen of the offense would be knowledge of the growth?

Mr. Hester: That is right.

Mr. Vinson: That is, if there are penalties, you generally use the word "willfully", and in many instances "knowingly", because it is the intent with which the thing is done that governs, it seems to me.

I am in thorough accord with any effort to clean the thing out, but I don not think it is as significant as it would seem.

Mr. Hester: The question of intent is not involved here.

Mr. Vinson: I am speaking of the situation when you go to convict somebody, where the question of intentionally producing a thing would be involved.

Mr. Hester: That is right. Here is the situation.

Mr. Buck: There is nothing in this bill that provides a penalty for knowingly producing anything.

Mr. Hester: No.

Mr. Buck: There is merely the failure to register that is involved.

Mr. Hester: Under this bill, if you grow this wild, it is the duty of the Government to notify you; and if you do not destroy it within a certain length of time after you are notified, then you are required to qualify as a producer and pay some small occupational tax. And the only reason for that is that that is the only way the Government can acquire information and know where it is growing wild.

Mr. Vinson: A person would have to have knowledge that he is growing it before he can be convicted of any crime or misdemeanor.

Mr. Hester: That is right. The bill requires the Government to notify him. UNtil he has such notice he is not subject to the producers' tax and, of course, couldn't be prosecuted for evading the tax.

Mr. Lewis: Does it seem to you gentlemen who have studied the subject with a view to eliminating the evil that the growth of this plant must be completely eliminated?

Mr. Hester: It will have to be under control in order to prevent evasion of the producers' tax.

Mr. Dingell: Mr. Hester, do you not believe that the average farmer would be willing to use a mowing machine or scythe if he thought that in that way or any way at all after a year or 2 years he could exterminate and kill the weed which kills people?

Mr. Hester: I would be amazed if they would not, but as Mr. Reed points out, the preponderant consideration there is not of money.

Mr. Dingell: I think that, perhaps, only a fractional part of the farmers would be unwilling to cooperate in this.

Mr. Hester: I think so.

Mr. Dingell: Wherever they assume a different attitude, and are unwilling to do this in the public interest, they should be forced to eliminate the weeds.

Mr. Hester: We do not even compel them to eliminate the weeds under this provision. If they fail to do that, they would have to pay this occupational tax, make reports and returns, and we would know from that where the weeds were.

Mr. Dingell: Of course, there are some people who rebel against the payment of just taxes, some who rebel against any law. There was a cow war out in Iowa where they had to call out the militia and force the farmers to submit their cattle to the tuberculin test. They were willing to sell infected milk to people in the cities and cared not about the danger to their customers.

The Chairman: You must know how difficult this work of extermination would be. Some people talk about taking mowing machines and destroying these weeds, but on some farms you could not use mowing machines for any such purpose because of the roughness of the ground and rocks. If they undertook to do it with scythes, on some large farms it would take hundreds of men. It would be an almost impossible undertaking to remove these weeds to the extent of exterminating them.

Dr. Dewey: I was in the Department of Agriculture from 1890 to 1935. During the first 10 years, my work was chiefly on weeds and how to kill them. The last 30 years I had charge of the work with fiber-producing plants like hemp. This work required travel in all parts of the country, and I learned to look for weeds from the car windows or wherever I found them.

Thousands of letters came to me asking about weeds and, so far as I can recall, there were only four asking about hemp as a weed and in these instances it was not a troublesome weed but merely a new plant that looked like a weed to the farmer who asked the question. Although I was looking for weeds and all plants that might be troublesome as weeds, I never found the hemp plant to be a really troublesome weed.

In one instance, it appeared in a crop of oats that had followed a hemp crop the previous season and the hemp had been permitted to become overripe so that the seeds fell off before the hemp was harvested. The plants were scattered through the oat field of about 5 or 6 acres, but one man could have easily pulled them all out in less than half a day. They did not come up the following year.

Hemp is an annual plant, growing only from the seeds. It does not have a perennial root or root stocks like Canada thistle or Johnson grass and therefore, it may be easily exterminated by cutting it before the seeds are produced. Furthermore, if the stalks are cut off, they do not send up branches from the stubble. Cutting but once, therefore, kills the plant.

When it grows as a weed, it does not produce many seeds, and it does not spread rapidly as do wild carrots, which Mr. Reed mentioned, and other really troublesome weeds. It grows as a weed along roadsides, railways, in waste lands, on overflowed lands along rivers and where seed from bird cages has been thrown out in back yards. It is almost invariably in good fertile soil and in the open-- never in woods or swamps. This weed type often reseeds itself and persists in the same place year after year provided it is not cut down or any of the plants disturbed. Stock do not eat the plants. As a weed, the plants are usually only a few in a place or at most a few square rods.

The largest plant of hemp known to me as a weed was in a waste land along the railway between St. Paul and Minneapolis. I watched this plant every year or two for a period of at least 10 or 15 years and it did not increase materially in size. There were possible about 15 square rods growing where the seeds could easily have scattered out, but there seemed to be no stragglers. These plants could have been easily cut down by one man in less than 2 hours.

If the plants are cut before they produce seeds, they would be easily exterminated. A few dormant seeds may come up the following season or even the second season, but the plants are usually so conspicuous as to be easily found and they are not abundant so as to require excessive work in cutting them. Hemp never persists as a weed in cultivated land. The weed type has nearly solid stalks, different from the hollow stalk of the fiber producing type. Seeds of the fiber type do not produce persistent weeds.

It is believed that if bird seeds are treated so that they will not germinate, the source of hemp as weeds will be eliminated. The extermination of the hemp as a weed would be very much less difficult than the extermination of the common barberry, which has been done to safeguard farmers against wheat rust or the extermination of wild currants to save the white pine trees from the white-pine blister rust. Both of those plants were widely distributed and, having perennial roots, they had to be dug out, while hemp has merely to be cut off. In each case, the efforts have been successful and the rust on wheat and on the white pines has decreased.

Mr. Crowther: Has there been any increase in the use of this marihuana drug during the last year or two, in cigarettes, or otherwise?

Mr. Hester: I will have to refer that question to Commissioner Anslinger.

Mr. Anslinger: There has been.

Mr. Crowther: According to a brief that has been submitted, as a rule the addict passes into a dreamy State, in which judgement is lost, the imagination runs rampant; he is subject to bizarre ideas, lacking in continuity, and losing all sense of the measurement of time and space. I was wondering if there was a very marked increase in the smoking of this drug in cigarettes last year, following the period of September and October.

Mr. Anslinger: It has been on the increase.

Mr. Crowther: Has it increased lately?

Mr. Anslinger: There has been a decided increase in the number of seizures, or the number of seizures in 1936 over the number in 1935.

Mr. Vinson: Would you say that a prolonged period of suffering over a period of several years would have anything to do with the forming of the habit?

Mr. Anslinger: No, sir. I might say, with respect to the question of the farmers destroying the weeds that we have found a number of instances where the weed was growing on property, and when we have called it to the attention of the property owners, we have found that they have not only gladly cooperated in destroying the weeds but they have destroyed them by burning with a view to getting rid of them entirely. We have never found a case where a property owner has not cooperated with us in getting rid of this destructive weed.

Mr. Hester: Just a moment ago some question was raised with reference to the sterilization of seed, and this is the situation there: There are two reasons for including seed-- first, because of their use in growing the weed, and second, because of the smoking of the seed. Mr. Dewey, who is the expert of the Department of Agriculture, does say that the sterilization of the seed would make it impossible to use them for growing purposes, but these gentlemen are not in a position to say that the sterilization of seed will likewise remove any marihuana from them. On the other hand, we are not in a position to say that sterilization will not remove the marihuana. It seems to us that the burden of proof is on the Government there, when we might injure a legitimate industry, to submit evidence to this committee that sterilization will not remove marihuana from the seed.

Mr. Lewis: How is the sterilization of the seed effected-- by heat?

Mr. Hester: Yes, sir; by the application of heat. Under the circumstances, we feel that we should submit to the Secretary of the Treasury the question as to whether the Treasury Department would object to the proposed amendment which will except from the definition of the term marihuana sterilized seeds, which have been made incapable of germination. If the Secretary has no objection, we will advise the committee. Then, if at some later date it develops from experience or chemical analysis that marihuana is still in the seeds after sterilization and that they are being smoked throughout the country, we might have to come before the committee again and propose an amendment which would strike out this language, and revert to the situation at the present time under the bill as it stands. We have discussed the matter with these gentlemen, and they are agreeable to that proposition if the Secretary has no objection and the committee approves.

The Chairman: In other words, you would test the practicability of that method.

Mr. Hester: Yes, sir.

Mr. Crowther: It would be like treating fats to make them inedible.

Mr. Hester: Yes, sir. The amendment reads--

Sterilized seed of such plant which is incapable of germination.

We think that takes care of the situation.

The Chairman: We thank you for your statement.

(Thereupon the committee adjourned subject to the call of the Chair.)

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