Earlier this week, the United States Department of Agriculture (“USDA”) issued a bulletin regarding the agency’s current view on hemp’s legality after the Agriculture Improvement Act of 2018 (“2018 Farm Bill”). In a memorandum to U.S. Secretary of Agriculture Sonny Perdue, USDA attorney Stephen Alexander Vaden provided specific legal opinions related to hemp and the effects of the 2018 Farm Bill. Noting that the 2018 Farm Bill does not affect the ability of States, Native American tribes, the Secretary of Health and Human Services, or the Commissioner of the Food and Drug Administration (“FDA”) to implement and enforce their regulatory regimes with respect to hemp, Vaden noted the following key points:
- The 2018 Farm Bill removed hemp from the Controlled Substances Act (“CSA”), meaning that hemp is no longer a federally controlled substance.
- After the USDA publishes regulations addressing the 2018 Farm Bill and hemp production (which it has yet to do), state and/or tribal authorities must allow interstate transportation of hemp produced in compliance with the 2018 Farm Bill.
- State and tribal authorities are currently prohibited from barring the interstate transportation of hemp produced in compliance with the 2014 Farm Bill.
- A person lawfully producing hemp in accordance with the 2014 Farm Bill who was convicted of a state or federal felony relating to a controlled substance prior to December 20, 2018, is still allowed to produce hemp pursuant to the 2014 Farm Bill. Otherwise, industry hopefuls with previous felony drug convictions face a 10-year ineligibility period as outlined in the Agricultural Marketing Act of 1946 (“AMA”).
While it’s broadly known that the 2018 Farm Bill removed hemp from the federal CSA, the USDA further clarified that such removal is self-executing. Vaden noted that “[a]lthough the CSA implementing regulations must be updated to reflect the 2018 Farm Bill amendments to the CSA, neither the publication of those updated regulations nor any other action is necessary to execute this removal.”
Vaden comments on the interstate transportation of hemp are particularly important. Citing elements of the 2018 Farm Bill in conjunction with the AMA, Vaden noted that the 2018 Farm Bill preempts State law to the extent that State law prohibits the interstate transportation or shipment of hemp that has been lawfully produced in accordance with the 2018 Farm Bill. Further, hemp lawfully produced pursuant to the 2014 Farm Bill is also entitled to protection for interstate transportation. State and tribal authorities, therefore, cannot prohibit the shipment or transport of hemp produced in accordance with either Farm Bill, even though States and tribes retain the right to prohibit hemp production within their territories.
That said, to date transporting hemp across state lines has been a challenge due to hemp’s varying legality from state to state. Many states have at least some type of hemp program. However, some states have prohibited hemp operations and even prosecuted hemp’s interstate transport. In February 2019, police in Oklahoma and Idaho seized nearly 25,000 pounds of cannabis transported across state lines, despite the transporters’ claims that such cannabis complied with the federally permissible delta-9 tetrahydrocannabinol (“THC”) limitations for hemp.1 The USDA’s recent bulletin should help to bridge the gap between state and federal authority as it relates to hemp, but significant challenges may still remain.
Although the USDA released guidance for the import of hemp seeds from international markets back in April,2 the agency has been notably silent in the regulatory discussion of cannabinoids and has yet to issue its regulations for the cultivation of hemp. Misconceptions regarding hemp’s legality in relation to extracted cannabinoids – such as THC or CBD – have arguably increased with the industry’s boom following the 2018 Farm Bill, leaving law enforcement agencies struggling to adapt. In mid-May, it was reported that police field tests across the country have failed to correctly measure cannabinoid levels or identify hemp products within the permissible threshold of THC content.3 Since those tests were initially designed to solely detect cannabis, and hemp is a variety of the cannabis plant—Cannabis sativa L., a positive field test could erroneously lead to the seizure of hemp or hemp extracts or even to the arrest of associated persons.4 Considering the FDA has struggled with how to address the 2018 Farm Bill, the USDA’s recent comments, while welcome, will not be sufficient to resolve public confusion and often the arbitrary regulatory environment for hemp. Both will need to be further corrected as the industry moves forward.
Without providing any definite timeframes for publication or implementation, the USDA’s memorandum concludes by stating that the agency expects to issue its regulations for hemp cultivation sometime this year.
The USDA’s complete legal analysis can be found here.
- Hemp Industry Daily. “Interstate Hemp Commerce under Fire despite Farm Bill Assurances.” Hemp Industry Daily. February 05, 2019. Accessed May 30, 2019. https://hempindustrydaily.com/interstate-hemp-commerce-under-fire-despite-farm-bill-assurances/
- Branfalt, TG. “USDA Releases Hemp Seed Import Guidance.” Ganjapreneur.com. April 25, 2019. Accessed May 30, 2019. https://www.ganjapreneur.com/usda-releases-hemp-seed-import-guidance/
- Leslie, Katie, Jodie Fleischer, Steve Jones, and Jeff Piper. “Common Police Field Tests Can’t Distinguish Between CBD, Pot.” NBC4 Washington. May 28, 2019. Accessed May 30, 2019. https://www.nbcwashington.com/investigations/Popular-Police-Field-Tests-Cant-Tell-the-Difference-Between-CBD-and-Marijuana-510335641.html
- Leslie, Katie, Jodie Fleischer, Steve Jones, and Jeff Piper. “Common Police Field Tests Can’t Distinguish Between CBD, Pot.”