The delay in passing and implementing the 2018 farm bill has left hemp producers and state departments of agriculture dealing with a world of uncertainty regarding everything from importing seed to providing guidance to law enforcement about how to regulate the transportation of hemp across state lines.
The farm bill legalized hemp production in all 50 states, the District of Columbia, and Puerto Rico, as well as on tribal lands within the United States. The bill also put hemp production under USDA control and removed hemp from the Drug Enforcement Agency’s list of controlled substances. By removing hemp from the list of controlled substances, the farm bill also relieved DEA from having to regulate hemp, defined as containing no more than 0.3 percent tetrahydrocannabinol (THC), the main intoxicant in the cannabis plant.
However, it is unclear whether schedule 1 permits required to import controlled substances are still needed to import hemp seed. The 2018 farm bill has yet to be implemented and states are still operating under the 2014 act as well as a patchwork of state laws. Under the 2014 farm bill, hemp seeds would still be regulated by DEA.
“DEA has washed its hands of this,” says Dave Kuntz, deputy communications director for the Washington office of Sen. Jon Tester, D-Mont. Both the Montana Department of Agriculture and the Minnesota Department of Agriculture confirmed that statement.
Anthony Cortilet, supervisor of the Noxious Weed and Industrial Hemp Program at the Minnesota Department of Agriculture, says, “We are right now in a holding pattern. DEA was issuing permits until early March. The problem is customs. They appear to still be waiting for permits.”
Sen. Tester raised this concern to Secretary of Agriculture Sonny Perdue during an appropriations hearing of the Senate Ag Appropriations Subcommittee last week. Perdue, who was unaware of the issue, promised Tester he would look into it.
“All of the states are letting their federal congressional people know about it, and we hear there will be talks with federal agencies this week,” Cortilet said.
In Minnesota, applications from farmers who want to grow hemp are up substantially, from 51 participants with 710 acres last year to 400 applicants wanting to grow 6,500 acres this year.
Because production of hemp is now legal throughout the United States, transporting it across state lines has also become legal. But there is still uncertainly regarding interstate commerce. Ben Thomas, the director of the Montana Department of Agriculture, pointed out the 2018 farm bill provides protection to legally grown hemp, but those protections are not provided in Section 7606 of the 2014 farm bill, which allowed states to implement pilot programs to grow hemp.
According to a February CNN article, state police in western Idaho confiscated nearly 7,000 pounds of legally grown hemp from a truck driver. The plants, produced by a registered and licensed hemp farm in Oregon, were being shipped to Big Sky Scientific in Colorado, a startup that buys hemp rich in cannabidiol (CBD) to process into CBD powder and sell to product manufacturers.
According to the article, Big Sky Scientific said it tested 19 samples from the Oregon farm’s crop on January 17 and all tested at 0.043 percent for THC, lower than the federal legal limit. However, the tests used by the Idaho state police could not tell the difference between hemp and marijuana, defined as any cannabis plant with a THC content over 0.3 percent. To complicate matters, Idaho state law defines marijuana as all parts of the cannabis plant and considers a cannabis plant with any evidence of THC to be marijuana.
According to the National Council of State Legislatures, hemp production is currently illegal in nine states: Idaho, Georgia, South Dakota, Texas, Iowa, Louisiana, Mississippi, Ohio, and Connecticut.
Georgia’s lawmakers sent a bill to legalize hemp growth to the governor’s desk last week. Similar legislation has moved in the legislatures of Idaho, Iowa and Ohio, where one chamber has passed a legalization measure and full bicameral approval awaits.
In South Dakota, the legislature voted to approve industrial hemp growth, but Gov. Kristi Noem — who voted for the farm bill as a member of Congress in December — vetoed the bill, citing concerns of hemp growth leading to marijuana legalization.
Similar to federal law, most state statutes define industrial hemp as varieties of cannabis with THC concentrations of not more than 0.3 percent.
“The law is clear. Hemp is legal. But the problem is you are dealing with a plant that based on its THC content is either completely legal or an illegal drug,” Cortilet says. Law enforcement agencies across the country are still not quite sure how to deal with it, he adds.
The federal government still does not recognize any form of marijuana as legal, but 10 states have legalized marijuana and at least 18 others have legalized medical use of marijuana, including CBD oils and tinctures. Thus, under federal law, any hemp grown in the United States has to be made into grain or fiber products.
Edible grain products, such as hemp flour, are regulated by the Food and Drug Administration. Hemp growers can feed hemp to their own livestock, but they will not be able to sell it as feed until the Association of Animal Feed Control Officials determines its safety.
The 2018 farm bill stipulates that all states with hemp production programs must submit a state plan to USDA for approval. This plan must include a reliable testing procedure to determine THC levels in cannabis grown as hemp, a detailed description of the land on which hemp is produced, a procedure to dispose of plants and products made from hemp plants grown in violation of the regulations, and a procedure to conduct annual inspections of hemp farms.
“We are telling our hemp growers, ‘You have to take this very seriously,’” Cortilet says. “Sometimes law enforcement gets calls from people saying, ‘My neighbors are dealing drugs.’”
Because hemp and marijuana plants look identical, the only way to tell the difference between a legal plant and an illegal drug is to test it for THC. Of course, staying at or below the allowed 0.3 percent threshold is highly dependent on what seed variety is planted.
Until 2015, no hemp seeds were grown in the United States. In January, Colorado, the first state to pass an industrial hemp production law, announced six new industrial hemp seed varieties were eligible to be grown by members of the Colorado Seed Growers Association. Other states growing hemp seed include California, Washington, and Oregon.
In 2018, Montana planted more acres to hemp than any other state, with 22,000, followed closely by Colorado, with 21,578 acres. To ensure all of its hemp acres were legal and to fully comply with DEA regulations, Montana’s hemp pilot program relied on long-established Canadian seed companies to supply hemp seed to its growers. But now that DEA says it no longer regulates hemp, importing hemp seed has become a problem.
“There is confusion at the border,” says Thomas. “We are unable to secure access to seed. We need clarity as to what variety of seeds are fully legal.”
Without approved seed, some Montana growers may not be able to plant hemp this year. Under the 2018 farm bill, Thomas says Montana plans to be more flexible in what seed varieties it allows growers to plant, but until its new state plan is approved by USDA it will continue to operate under the 2014 law.
Even though USDA has one year to implement the farm bill, Section 297B of the 2018 bill states that the secretary of agriculture shall accept or reject a state plan no later than 60 days after receipt. So far, at least two states, Kentucky and Montana, have already submitted state plans to USDA, well over 60 days ago.
In an online statement, USDA’s Agricultural Marketing Service (AMS), the lead agency administering the new Hemp Production Program, says it expects the final rule on hemp to be “implemented by the end of calendar year 2019.
“Until the final rule is implemented, all rules and restrictions must be followed per Section 7606 of the 2014 Farm Bill,” AMS continued. “In other words, no one should try to implement the 2018 Farm Bill production provisions before the final USDA rule is established. USDA cannot help with interpretation and implementation of the laws related to your state permitting and interstate commerce.”
Over the past few years, transporting hemp plants and seeds across state lines has become easier as more states have implemented pilot programs and U.S.-grown seed has become more available.
“We are now allowing folks to buy seed from other countries and from a licensed person in another state’s program,” Cortilet notes. However, some of the hemp plants grown in Minnesota from seed produced in other states have tested high in THC and have had to be destroyed, he adds.
Thomas and others remain frustrated. “I fully understand that implementing the farm bill is an incredible amount of work,” Thomas says. “But the power USDA has is to review and accept, or reject, our state plans.”
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