As Israel’s biblical farming sabbatical nears, medical cannabis is budding issue

As many Israelis prepare to “rest the land” during the upcoming agricultural sabbatical year as commanded in the Book of Exodus, a debate has been sparked among rabbinical authorities as to whether locally grown cannabis will be subject to a complex set of guidelines. Will religious Jews be permitted to benefit from the plant in any way while observing the biblical laws of shmita that were set from on high?

The debate stems from the biblical commandment that residents of the Holy Land observe seven-year cycles culminating in a Jubilee every 50th year, with specific laws dictating matters such as loan forgiveness and the return of property titles. Most of the laws, however, deal with agriculture, and include restrictions on planting, tending, harvesting or even claiming ownership of crops that grew in one’s own field.

These biblical laws will once again take effect at sundown on September 6, when Jews welcome the new Hebrew year of 5782. How they impact the nearly 95,000 Israeli medical cannabis recipients, as well as the unknown number of recreational users, depends on a range of factors — including where, when and how the cannabis was grown, whether Judaic law categorizes cannabis as a foodstuff, and whether the crop was cultivated for medicinal use.

The average Israeli patient consumed 35 grams of marijuana monthly — or 420 grams annually — in 2020, according to the Israeli Medical Cannabis Agency (IMCA), which operates under the auspices of Israel’s Health Ministry.

Israel was the top importer of medical cannabis globally as of July 2020, but the 4,000 kilograms (8,818 pounds) of foreign-grown marijuana, which would not be subject to the biblical sabbatical laws, represent less than 10 percent of the cannabis Israelis are projected to burn through in 2021. The IMCA reports that Israelis used 3,455 kilograms (7,617 pounds) of cannabis in May of 2021 alone.

And while produce grown and harvested in Israel prior to the sabbatical year can be used without concern, it’s unlikely that producers will stockpile enough cannabis to last 12 months.

According to Saul Kaye, the religiously observant CEO of Israel-based medical marijuana initiatives CannaTech and iCan, the growth cycle of a medical-grade cannabis plant is between nine and 15 weeks from planting to harvest. This means that multiple planting cycles will probably take place over the course of the 5782 sabbatical year.

Kaye tells The Times of Israel that the connection between medical cannabis and the seventh-year sabbatical has taken on an additional urgency in recent years.

“Last shmita cycle [in 2014-2015] was the first time anyone really thought about it, because there was a certain mass of patients,” says Kaye. “We were probably then at 18,000 or 20,000 patients in Israel, so someone was obviously asking a question somewhere.”

Medical marijuana use has been legal in Israel since the 1990s for patients suffering from serious illness, but the last decade has seen an exponential rise in the number of recipients as the drug gained wide political and public support. Israel has become a global pioneer in medical cannabis cultivation and research, while doctors have taken to prescribing cannabis to help with a range of physical, mental and emotional conditions including PTSD, gastrointestinal conditions, palliative end-of-life care, chronic pain and epilepsy.

“When we talk about the number of people receiving medical cannabis, we’re talking about licenses, not prescriptions, since it falls under the dangerous drug ordinance,” specifies IMCA director Yuval Landschaft. “In Israel we have almost 100,000 patients getting medical-grade cannabis through pharmacies with their license — 93,675, to be exact. But that was as of two days ago — today it’s probably more. You can check it on our website.”

(At the time of publication, the IMCA website reported that as of the end of May, 94,830 licenses had been issued in Israel.)

What exactly is shmita, how is medical cannabis grown in Israel, and how might cannabis consumers be affected by the sabbatical laws? The following explainer should help nip any questions in the bud.

Seventh-year stretch

The roots of shmita can be found in the biblical commandments to allow lands within the historical boundaries of the Land of Israel to lie fallow for a 12-month period, once every seven years, by refraining from performing certain agricultural activities such as sowing fields or trimming vineyards.

The laws only apply to lands that were part of the Israelite kingdom of old, so areas such as the city of Eilat, which are found in modern Israel but weren’t located within the original boundaries, are exempt.

The Bible itself prohibits activities such as planting, pruning, and harvesting, while the sages enacted additional restrictions to prevent people from making mistakes or “accidentally” benefiting from crops that “just happened to spring up on their own” when no one was looking. To deter people from clandestinely transgressing the laws and claiming that residual crops grew without being actively planted, the rabbis issued a blanket edict called s’fichin forbidding people from eating any annual produce — that is, crops that need to be resown each year — even if no laws of shmita were violated to facilitate their growth.

Because of the biblical wording, the rabbis also distinguish between edible crops and inedible crops, with inedible crops being awarded a higher degree of leniency when questions arise.

During the shmita year, farmers aren’t allowed to obstruct outsiders from accessing their fields, and any produce yielded by perennial crops, such as fruit trees, is considered free for anyone to take. In fact, in the olden days it was common for people to wander into strange fields, picking and eating what they wanted.

The law wasn’t intended to be abused, though. Produce grown during shmita contains an inherent holiness called kedushat shvi’it, or the holiness of the seventh year, and must be treated with extra respect. This means that it can’t be prepared or used in unusual ways, transported out of the Holy Land or thrown away wantonly.

It should be noted that the aforementioned laws represent just a few of shmita’s many restrictions — which additionally have myriad interpretations by various rabbinic authorities.

Adapting to the times

Most sages hold that the laws have the status of a divine commandment (rather than a rabbinic one) only when a majority of global Jewry resides in Israel. But a portion of them take this a step further, believing that the biblical judiciary system must also be in place for the divine status to apply.

Even though shmita today is purely a rabbinical commandment, it is stringently observed by many Israeli Jews. With all of these laws it may seem surprising that modern Israel, a country of over 9 million, doesn’t suffer major food shortages every seven years.

Fortunately, for every rabbinical edict there’s a rabbinical loophole to keep things running smoothly. During the early Jewish settlement of pre-state Israel in the last half of the 19th century and first half of the 20th, the Jews faced a difficult choice: forgo the laws of shmita or face starvation.

Rabbinic authorities at the time suggested a stopgap measure of temporarily selling the land to non-Jews, which many held would circumvent the laws of shmita and allow crops to be grown. The practice is continued today, but many Orthodox Jews question the validity of the arrangement.

According to Rabbi Yosef Zvi Rimon, a renowned Israeli arbiter of Jewish law and authority on shmita, there’s a viable alternative.

“We have a good solution put forth before the foundation of the State of Israel by the Chazon Ish, one of the greatest authorities of religious law,” says Rimon. “He presented the solution to Kibbutz Chafetz Chaim that you can grow crops in a greenhouse with a roof above it, and have the plant itself disconnected from the ground — you can put it in a pot with no holes or with a plate underneath.”

Do the laws of shmita apply to cannabis?

According to Rabbi Eliezer Simcha Weisz, who sits on the Council of the Israeli Chief Rabbinate, it is “obviously forbidden” to plant cannabis in the ground or tend to it during the shmita year. This is because it’s against the laws of shmita to plant any annual plants whatsoever, regardless of their purpose or use — even as medicines.

Despite the blunt prohibition, the laws of cannabis and shmita are hazier than one might think.

For one thing, there is the loophole of the Chazon Ish, which would allow cannabis to be planted above ground in greenhouses with the resulting crop exempt from the laws of shmita altogether.

“Usually what we do is put thick plastic down on the ground and then put the pot on top of it,” Rimon says of crops in general. “So if you have a roof above, then you can plant the marijuana and it’s a solution that satisfies the most stringent requirements.”

In addition, due to its medicinal properties, cannabis grown in the ground in contravention of the laws of shmita may still be consumed, says Weisz, despite the aforementioned prohibition of s’fichin, which would normally make such crops forbidden.

“Cannabis is an analgesic, sedative, and has different mood-altering effects on different people — but a fully physically and emotionally healthy person wouldn’t take it, so it’s not considered to be an edible product,” says Weisz.

This categorization allows for more leeway when it comes to implementing the laws of shmita. For example, Maimonides wrote that the prohibition of s’fichin doesn’t apply to non-food items. Labeling cannabis as a medicine in effect makes it easier to define it as a non-edible plant (the non-edible and medicinal categories aren’t mutually exclusive), and thus the consumption of marijuana grown in violation of shmita laws is permitted.

Not everyone fully agrees. While the rabbinic consensus is that cannabis can certainly be medicinal, it is not necessarily so. According to Rimon, some authorities say recreational cannabis is the same as tobacco, which many liken to ingesting food due to the way that smoke enters the lungs.

On the other hand, Rimon says, playing devil’s advocate, “It’s not something you eat. If you eat cannabis [alone], is it tasty? If it’s not edible, then it shouldn’t be categorized as a food.”

The argument has additional implications. Edible plants grown in the earth in violation of shmita laws still contain the holiness of the seventh year, which means they can’t be used in unusual ways. Ironically, this could potentially mean that marijuana products containing the sanctity of shmita must be smoked and not eaten — precisely because they are considered a foodstuff à la tobacco.

As for how much due diligence an observant Jew must do before purchasing cannabis during a sabbatical year, “If a person is ill or addicted to cannabis, where it’s considered to be a sustaining substance, it is permissible for him to obtain the cannabis anywhere, even knowing that it was not planted according to the laws of shmita,” says Weisz. “Though a person should consult the proper authorities to ensure they are purchasing their cannabis legally.”

The grass is greener

“There are two ways to grow cannabis,” says Kaye. “Through agriculture, which is grown outside or in greenhouses in the earth, or through horticulture, which involves growing tables, indoor grows — more sophisticated ‘modern’ agriculture, let’s call it.”

Agriculturally grown cannabis would certainly have shmita implications, says Kaye. As for the horticulture route, he says, “It’s all up for debate.”

“Generally in Israel because we’re only a medical market, we only have grown in buckets [detached from the ground],” Kaye says, adding that if conducted under the proper conditions, this method could circumvent the laws of shmita.

“I don’t know how many of the growers have the buckets directly on the floor and how many have them on tables,” Kaye says. “The newer, more modern growers have them on tables, the older growers still have them possibly on the floor. And if it’s on the floor but actually separated [from the earth] because it’s on cement or something else, is that enough for shmita? I’m not going to be the rabbi on that.”

Kaye estimates that “upward of 70% cannabis producers are growing completely off the floor, possibly in greenhouses, but always in a controlled growing environment, with water supplies.”

“They’re not watering the ground,” he says. “They’re always watering a pot that has cannabis in it. And the pot, it’s a big boy — 70, 80, 100 liters of soil. And the guys who grow completely indoors don’t grow on soil at all — they grow on coconut. For that, there’s absolutely no question of shmita.”

According to Kaye, two or three of Israel’s roughly 30 producers have completely indoor operations.

“The blessing of Israel is the great climate that allows us to make three, nearly four, growth cycles per year — not like in nature, in open fields, where cannabis has just one growth cycle a year,” says the IMCA’s Landschaft. “The Israeli method of growth wouldn’t be called just a regular greenhouse. We use very accurate, modern, well-built greenhouses that have controlled environments like being indoors.

“The ceilings are well-sealed and can be controlled, you can make it dark if you want. Not in every farm — some are still using the old greenhouse systems. But most are using this technology, and the whole industry is going in this high-tech direction. We’re able to measure the luminosity, the level of humidity in the air, all kinds of variables, but we use sunlight coming through the roof. So it’s indoors, but with the ability to use nature’s blessing, the sun.”

Shmita expert Rimon says that according to Jewish law, if 90% of growers are known to be using methods circumventing the laws of shmita, one can assume any cannabis he or she obtains to be reliable. However, there are currently no religious authorities verifying how Israel’s medicinal cannabis is being grown.

Among the services offered by Israel’s chief rabbinate is kosher supervision and certification for restaurants or factories. During sabbatical years, the rabbinate also oversees the various arrangements circumventing the laws of shmita and provides supervision to ensure produce labeled as shmita-compliant is indeed so.

As for whether the rabbinate could one day expand its operations to include overseeing cannabis growth during shmita, Weisz says that “absolutely, the rabbinate might consider supervision in the future if there’s sufficient demand — and with the number of people using medicinal cannabis today it’s likely that the demand will exist.”

“But,” says Weisz, “it should be noted that while we can compile lists of approved medications, we generally don’t like to place official kosher certifications on medicinal products themselves because we don’t want people searching for only certified medicines when their health is at stake.”

Landschaft’s explanation about the cultivation process might put religiously observant cannabis consumers concerned with the laws of shmita at ease.

“Medical-grade cannabis cannot be grown in the earth, it needs to be grown on tables above the ground,” he says. “Also, that puts the plants at a very convenient height for the people who work there — they don’t have to lean down all the time.”