I have been asked the following question by several people:
Does medicinal cannabis have "kedushat shviit"?
Note: Halakhic terms related to shmitta are clarified below in order to understand the question and answer– including the term kedushat shvi'it in the question itself. (Those familiar with the terms can skip the next few paragraphs until the section titled The Problem):
Glossary for those unfamiliar with shmitta halakhic terminology:
-Shvi'it means "seventh" and is used synonymously with the word shmitta.
-Kedushat shvi’it– literally sanctity of the seventh year. See explanation below
-Hefker – ownerless. See explanation below.
The Torah mandates that all produce that sprouts by itself, that is, produce that grows without cultivation during the shmitta year, must be declared hefker, ownerless. (This produce is known as totzeret shvi'it, shmitta produce.) There are two practical results:
1. Anyone can take what he or she needs from another’s shmitta produce, the egalitarian result of keeping shmitta.
2. Produce that grows on Jewish-owned land during shmitta, intentionally or not, has kedusha (sanctity) and is considered to have kedushat shvi’it. This is because the shmitta year is sanctified to Hashem.
How is one supposed to treat produce with the status of kedushat shvi’it? Because of its special status, this shmitta produce must be treated with respect. Such produce cannot be wasted and cannot be used for purposes other than the common ones. Edible leftovers, including the edible peels of produce such as apples and cucumbers, cannot be discarded. Avocado and kiwi peels, on the other hand, which are inedible, may be discarded. Leftovers that cannot be discarded should be left to rot first and only afterward may they be thrown away. More lenient opinions state that such leftovers can be double wrapped and then thrown away.
-biur:The Torah states that one may store shevi’it produce only as long as that product is still available in the fields for animals to eat. Once a particular species is no longer available in the field, one must rid one's house of it, leaving only one-day’s rations. The rabbinate publishes charts that list the relevant dates based on current agricultural information.
-Heter mechirah: In the nineteenth century, when Jews began resettling the land in significant numbers, the population was on the verge of starving. Prominent rabbinic leaders including Rabbi Yitzchak Elchanan Spector and Rabbi Avraham Yitzchak Hacohen Kook endorsed what Sephardi rabbis had endorsed four hundred years earlier, during the time of Rabbi Yosef Karo (renowned luminary, author of the Shulkhan Arukh of halakha), the act known as heter mechirah, which permits the sale of Jewish-owned land to non-Jews for the duration of the shmitta year as according to many opinions, produce grown on land owned by a non-Jew does not have kedushat shvi’it. Some rabbinic authorities feel that heter mechirah should only be used if there are no other options, but late Chief Rabbi and Rosh Yeshivat Merkaz Harav, Rabbi Avraham Shapira as well as late Chief Rabbis Rav Mordecai Eliyahu and Rav Ovadia Yosef, felt it the least halakhically problematic way to use produce grown in Israel during the shmitta year.
And in Israel, suggesting to non-observant farmers that they sell their land instead of having it lie fallow and thus grow crops on it is also a way to prevent produce grown in ways totally forbidden by halakha from being brought to market and bought by uninformed or unsuspecting Jews. It is an integral part of today's shmitta observance.
-Otzar Beit Din: There is, however, another method encouraging Israeli farmers, where local rabbinical courts hire workers to harvest crops (that have been grown as permitted) and then distribute them as needed among the people. The Beit Din has powers that are not the same as those granted individuals and may do that.This rabbinically ordained and supervised community stockpile is known as otzar beit din. The Chazon Ish preferred this method for growing crops in Israel during shmitta.
Instead of hiring independent help, the modern-day beit din, or rabbinical court, hires the farmers themselves as its agents to tend and harvest (as permitted) the crops. The beit din then appoints the usual distributors (trucks filled with bags of produce arrive at designated spots in many religious neighborhoods) and shopkeepers in designated stores (called Otzar Haaretz stores) as its distribution agents, allowing them to keep a certain markup as their distribution fee. The beit din calculates its expenses per unit, and passes these along as the “purchase price.” The produce has kedushat shvi'it.
The stores label the source of each kind of produce, from those grown in areas of Israel where shmitta is not applicable halakhically to those under beit din supervision, all from Jewish farmers, all making consumer and producers actively part of shmitta observance..
Although obviously not applicable for cannabis, it is an important concept, and also an integral part of shmitta observance in Israel today.
Yevul nochri - produce grown by non-Jews, such as that grown in Gaza or Europe..
(This is partially based on OU material. There are many sites with shmitta information, for example https://oukosher.org/blog/consumer-kosher/shemittah-for-the-clueless/)
The problem:
If cannabis can have kedushat shvi'it, then it has to be left in the field as hefker when it sprouts incidentally during the seventh year. How do we solve the problem of the halakhic obligation to proclaim the cannabis that sprouted in a farmer's field as hefker if that happens - and therefore is able to be taken by anyone but is subject to kedushat shvi'it? There is certainly no way that the police or Health Miinistry will allow the owners of cannabis fields to proclaim the produce hefker in this case!
Concerning cannabis that was grown and harvested during the sixth year of the shmitta cycle, that is, before the start of the shmitta year – there is no problem.
Cannabis from fields that are grown using heter mechirah – there is no problem for those who rely on that rabbinic opinion.
Cannabis grown by a non-Jew – there is no problem.
The only issue we have to discuss is cannabis resulting from incidental sprouting in the field of a Jew (that was not sold to a non-Jew for the shmitta year) and is lying fallow.
Halakhic factors:
Is cannabis a spice?
There is a debate among the acharonim about kedushat shvi'it of spices, because the Jerusalem Talmud discusses it but does not make a decision on the matter. There are those who are lenient because rabbinic laws are less stringent than Torah\Talmudic laws and here there is a rabbinical doubt (Pe'at Shulkhan and Rabbi Ovadia Yosef zts"l).
There are those who are stringent because the main prohibition is Torah-based even though we keep shmitta by rabbinic decree today (Chazon Ish, Hagaon Rav Eliashiv zts"l and others).
Nevertheless, concerning allowing us to use produce of the shmitta year for medicinal purposes by steaming or burning, it is accepted that one can use grasses for medicinal purposes in shmitta years even if they have the kedushat shvi'it of cattle fodder, because melugma (poultices) are made from grasses that people do not eat, and only livestock eat, as the Rishonim said.
Still, one cannot simply refrain from biur of cannabis across the board, because some opinions state that a melugma using cattle fodder still has kedushat shvi'it and needs biur.
Practically, as far as medical cannabis is concerned, it seems that we do not need biur because:
-people do not benefit or enjoy it equally (nowadays, we are not sure that can be said about the cannabis that can be obtained, unfortunately, for non medicinal use)
and because
-their beneficial use is after they have been steamed which is a kind of biur (although there is a halakhic disagreement about a plant's halakhic status if it is used after biur) and
-about those herbs meant for medicinal use the Chazon Ish says there is no sanctity in a melugma (but the Gaon Rabbi Shlomo Zalman Auerbach disagrees) and in addition,
-cannabis is smoked and not eaten (but the Magen Avraham considers smoking the same as eating.)
Conclusion:
We can take the lenient view in a rabbinic disagreement (makhloket d'rabanan) and declare that cannabis is not subject to kedushat shvi'it, and does not need biur as hefker. Someone who wants to be stringent can act as though it has kedushat shvi'it and do biur as hefker in the presence of three of his friends (or law enforcement officers) or at least put the cannabis in the hallway for a while – that is the most commendable way to deal with the issue, as the opinions for leniency can all be countered.
Of course, there is no question that smoking cannabis for purposes other than medicinal need is prohibited without having any bearing on the laws of shvi'it.
Rabbi Baruch Efrati studied at Merkaz HaRav yeshiva in Jerusalem and serves as a rabbi in Efrat. He is a prolific and much-read writer on Torah issues and heads the "Derech Emunah" (Way of Torah) movement of young Israeli Orthodox rabbis.
Translated by Rochel Sylvetsky
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