American Hemp, Lifting the Legal Fog

By Sam Gunnells

Since 2014, when Congress passed a major Farm Bill allowing states to set their own regulations on hemp production, more than thirty states have said a resounding “yes” to industrial hemp. With all that enthusiasm behind the plant, you might be forgiven for assuming that hemp laws are loud and clear. But you’d be wrong.

Now a new Farm Bill, the Agricultural Improvement Act of 2018, is having its day in Congress. The Senate version of the bill contains a measure that would remove the plant from the list of federally controlled substances and broaden access to farming rights for the people who grow it. The measure has received strong bipartisan backing – and some pretty persuasive voices are leading the charge.

Here’s the background on hemp laws:

You might know hemp through its illicit association with its mind-altering cousin, marijuana. But the truth is, hemp’s criminal status in America is a relatively new trend. The plant was grown widely on early American farms, due in large part to its sturdy fibers which led to an astonishing array of everyday uses. It was only after hemp’s heavy taxation under the Marijuana Tax Act of 1937, when it was targeted along with the act’s namesake, that American farmers began to shun the industrious crop.  

That association might sound fair at first blush. After all, the two strains, hemp and marijuana, belong to the same plant species, Cannabis sativa L. And admittedly, they do share a family resemblance. But that’s about where the similarities end. The major feature setting hemp apart is the plant’s extremely low levels of one vital ingredient: tetrahydrocannabinol. Better known as THC, this tough-to-pronounce compound happens to be the primary component behind the buzz that gives marijuana its claim to fame.

The allotment of THC found in hemp is so tiny, however, it isn’t likely to put even a lab rat in an altered state. And yet, when the federal Controlled Substances Act was passed in 1970, it still grouped hemp together with marijuana in the hardest class: Schedule I. That move cemented hemp’s illicit status at the federal level. And it meant growing or possessing hemp could land you with serious charges, no matter your state.

How did the 2014 Farm Bill impact state hemp laws?

Mild-mannered hemp’s federal classification as a Schedule I drug placed it among the ranks of some seriously dangerous substances, like heroin and MDMA. And for several decades, this hardline stance on hemp remained the law of the land. In the 1990s, a few states enacted or pursued legislation to allow the production of industrial hemp, but their impacts were negligible and few crops were planted.

Then, in 2014, members of Congress succeeded in passing a pro-hemp proposal–Section 7606–as part of that year’s omnibus Farm Bill. That measure allowed states to authorize a narrow range of hemp cultivation activities within their borders, ushering in a new era in American hemp. After spending decades deferring to federal leaders on hemp laws, states suddenly found themselves in the driver seat.

What Section 7606 did:

  • Giving context to its actions, Section 7606 legally defined industrial hemp to include any member of Cannabis sativa L. with a THC concentration no higher than 0.3 percent by dry weight.
  • It then authorized state agriculture departments and institutions of higher learning in states where hemp production is legal under state law to create their own pilot programs to supervise the cultivation of hemp for research purposes.
  • In states starting pilot programs–whether through an agriculture department or a research institution–it charged the agriculture department with establishing compliance regulations for the programs. This could extend to the creation of new commissions or other regulatory bodies.
  • Farmers wanting to grow hemp would need to be certified by and registered with their state’s agriculture department and remain in compliance with all established regulations.

How the 2014 Farm Bill changed the hemp game:

If the 2014 Farm Bill didn’t quite throw the door wide for legalized hemp, it did nudge it open to allow states to enter the space and look around. By 2015, seven states–Hawaii, Indiana, Kentucky, Minnesota, North Dakota, Oregon and Tennessee–had already passed legislation and put plants in the ground. With more states jumping at the chance in 2016, the U.S. hemp crop shot up from 3,933 acres grown to nearly ten thousand in a single year.

According to the National Council of State Legislatures, at least forty states have passed legislation to explore or hemp production, while at least thirty-eight now allow for hemp cultivation on some scale. Hemp plants are now being grown on more than 25,000 acres in at least nineteen states. And many of those states are already exploring some unique uses for the hemp they produce:

  • Kentucky’s pilot program is focused on studying the potential environmental benefits of hemp cultivation, including its possible use as a biofuel – an alternative to traditional fossil fuels.
  • In Colorado, researchers are taking a special look into hemp’s suitability as a source for animal feed, a potentially potent profit-driver for farmers given the staggering feed demands of the world’s farm animals.
  • Two universities in North Carolina–North Carolina State University and North Carolina A&T–are partnering with that state’s agriculture department to better understand how hemp farmers can practice soil conservation techniques in a variety of soil and climate types.   

A comprehensive state-by-state list of hemp laws.

State Hemp Cultivation for Research Hemp-derived CBD Marijuana-derived CBD for medical use Marijuana-derived CBD for general use Medical Marijuana Recreational Marijuana
Alabama Permitted Legal Legal Illegal Illegal Illegal
Alaska Permitted Legal Legal Legal Legal Legal
Arizona Not Permitted Legal Unclear Illegal Legal Illegal
Arkansas Permitted Legal Legal Legal Legal Illegal
California Permitted Legal Legal Legal Legal Legal
Colorado Permitted Legal Legal Legal Legal Legal
Connecticut Not Permitted Legal Conditionally Legal Illegal Legal Illegal
Deleware Permitted Legal Conditionally Legal Illegal Legal Illegal
Florida Permitted Legal Conditionally Legal Illegal Legal Illegal
Georgia Not Permitted Legal Conditionally Legal Illegal Illegal Illegal
Hawaii Permitted Legal Conditionally Legal Illegal Legal Illegal
Idaho Not Permitted Unclear Illegal Illegal Illegal Illegal
Illinois Permitted Legal Conditionally Legal Illegal Legal Illegal
Indiana Permitted Legal Legal Illegal Illegal Illegal
Iowa Not Permitted Legal Legal Illegal Illegal Illegal
Kansas Not Permitted Legal Conditionally Legal Conditionally Legal Illegal Illegal
Kentucky Permitted Legal Conditionally Legal Illegal Illegal Illegal
Louisiana Not Permitted Legal Conditionally Legal Legal Conditionally Legal Illegal
Maine Permitted Legal Legal Conditionally Legal Legal Legal
Maryland Permitted Legal Conditionally Legal Illegal Legal Illegal
Massachusetts Permitted Legal Conditionally Legal Legal Legal Legal
Michigan Permitted Legal Conditionally Legal Illegal Legal Illegal
Minnesota Permitted Legal Conditionally Legal Illegal Legal Illegal
Mississippi Not Permitted Legal Conditionally Legal Illegal Illegal Illegal
Missouri Not Permitted Legal Conditionally Legal Illegal Illegal Illegal
Montana Permitted Legal Conditionally Legal Illegal Legal Illegal
Nebraska Permitted Unclear Illegal Illegal Illegal Illegal
Nevada Permitted Legal Legal Legal Legal Legal
New Hampshire Permitted Legal Conditionally Legal Illegal Legal Illegal
New Jersey Not Permitted Legal Conditionally Legal Illegal Legal Illegal
New Mexico Not Permitted Legal Conditionally Legal Illegal Legal Illegal
New York Permitted Legal Conditionally Legal Illegal Legal Illegal
North Carolina Permitted Legal Conditionally Legal Illegal Illegal Illegal
North Dakota Permitted Legal Conditionally Legal Illegal Legal Illegal
Ohio Not Permitted Legal Conditionally Legal Illegal Legal Illegal
Oklahoma Not Permitted Legal Conditionally Legal Illegal Illegal Illegal
Oregon Permitted Legal Legal Legal Legal Legal
Pennsylvania Permitted Legal Conditionally Legal Illegal Legal Illegal
Rhode Island Permitted Legal Conditionally Legal Illegal Legal Illegal
South Carolina Permitted Legal Conditionally Legal Illegal Illegal Illegal
South Dakota Not Permitted  Legal Unclear Unclear Illegal Illegal
Teneessee Permitted Legal Conditionally Legal Illegal Illegal Illegal
Texas Not Permitted Legal Conditionally Legal Illegal Illegal Illegal
Utah Permitted Legal Conditionally Legal Illegal Illegal Illegal
Vermont Permitted Legal Conditionally Legal Illegal Legal Illegal
Virginia Permitted Legal Legal Illegal Illegal Illegal
Washington Permitted Legal Legal Legal Legal Legal
West Virginia Permitted Legal Conditionally Legal Illegal Legal* Illegal
Wisconsin Permitted Legal Conditionally Legal Illegal Illegal Illegal
Wyoming Permitted Legal Conditionally Legal Illegal Illegal Illegal
*Washington, D.C. Not Permitted Legal Legal Legal Legal Illegal

So, why are hemp laws still so confusing?

First off, the 2014 Farm Bill did nothing to change hemp’s inclusion on the controlled substances list. As it stands, hemp remains a Schedule 1 drug – and if you grow or possess it outside the bounds of activities authorized in your state, you could still be prosecuted to the full extent of the law. Unfortunately, Section 7606 failed to clear up a few things about how federal laws applied to the new state programs.

What Section 7606 left unclear:

  • For starters, while Section 7606 authorized states to supervise hemp cultivation for research purposes, it failed to provide a clear definition for what constitutes “research.” That vague language alone opened up a lot of uncertain angles in hemp law.
  • Similarly, the measure failed to make clear exactly how pilot programs and their participants might legally obtain hemp seeds. And it said nothing about whether raw hemp materials or hemp products could be trafficked across state lines. That ambiguity left individuals vulnerable to federal charges for something as seemingly innocuous as trucking a few hemp seeds the next county over.
  • And Section 7606 clarified nothing about the legality of compounds found naturally in hemp, like cannabidiol. Better known as CBD, products derived from this compound have exploded in popularity thanks to a range of reported health benefits. But the Drug Enforcement Administration’s (DEA) stance on CBD as a controlled substance leaves a big gray area around its legality in the states. The failure of Section 7606 to address this means that any CBD product sourced from these pilot programs could be subject to the same uncertainty.

What’s being done to lift the haze on hemp?

In 2016, the Drug Enforcement Agency (DEA) and the U.S. Department of Agriculture (USDA) released a joint “Statement of Principles” clarifying their take on Section 7606. But many hemp proponents are critical of that stance and want the DEA out of the picture altogether; and it appears Congress might be listening. New pro-hemp proposals are being considered as part of 2018’s big agricultural bill. Those proposals were first introduced by the influential Republican Senator Mitch McConnell – who, as the Majority Leader in the Senate, is now perhaps the most powerful champion for hemp reform.

Both houses of Congress have passed their own version of the Farm Bill, but only the Senate version contains the hemp proposals. In a strong bipartisan showing for hemp, the Senate passed their bill in June by a vote of 86-11. Now with conferees from both chambers gearing up to hash out the fate of a compromise bill, don’t be surprised to see senators from both sides of the aisle fighting hard to keep hemp in this new Farm Bill.

Why are the hemp proposals in the 2018 Farm Bill such a big deal?

  • The Senate’s proposals remove hemp from the federal list of controlled substances. This would make hemp federally legal, clearing the path for hemp cultivation in all states–and for purposes beyond just research.
  • Hemp farmers would enjoy broader benefits, including crop insurance and water usage rights, as well as protection from prosecution for those whose hemp crops exceed the 0.3-percent-THC threshold (farmers shown to have intentionally elevated THC levels in their plants could still be reported to law enforcement).
  • The proposals would legalize the extraction of CBD from hemp flowers, clearing up some–but not all–of the confusion over state-by-state CBD laws.
  • While the DEA would no longer play a major role in hemp regulation, the USDA’s role would greatly expand. In addition to being charged with reviewing hemp compliance plans submitted by state agricultural departments and Native American tribes, the department would also be authorized to explore the economic impacts of industrial hemp. That would likely pave the way for broader acceptance of hemp farming as a viable revenue generator and domestic job creator.

So, what are influential voices saying about hemp laws?

  • Senator Michael Bennet, a Democrat from Colorado, has stated that, “Americans used hemp in fabrics, wine, and paper. Our government treated industrial hemp like any other farm commodity until the early 20th century, when a 1937 law defined it as a narcotic drug, dramatically limiting its growth. This became even worse in 1970 when hemp became a Schedule I controlled substance. In Colorado, as is true across the country…we see hemp as a great opportunity to diversify our farms and manufacture high-margin products for the American people.”
  • Senator McConnell, speaking at a Senate Agriculture Committee meeting in June, highlighted hemp’s potential as a sound alternative to once-lucrative crops that are falling by the wayside: “I know there are farming communities all over the country interested in this,” said McConnell. “Mine are particularly interested in it, and the reason for that is…our No. 1 cash crop used to be something that’s not really good for you: tobacco. And [tobacco] has declined significantly, as it should, given the public health concerns.”
  • Representative Jared Polis, another Colorado Democrat, said in 2017 that, “Hemp has boundless potential as a sustainable alternative to plastics and other environmentally harmful products. It can be used in everything from construction materials to paper to lotions and even ice cream. It’s past time that we eliminate absurd barriers and allow hemp farmers to get to work, create jobs, and grow this promising and historically important crop.”

What’s next for hemp laws in America?

Right now, a lot of that depends on how the Farm Bill plays out in committee. With the majority leader appointing himself a Senate conferee, you can be sure Senator McConnell will make a hard push to include his hemp proposals.

Here’s what to expect if Senator McConnell and his allies get their way with this new Farm Bill:

  • First, hemp would be removed from the Controlled Substances Act and managed not much differently than any other agricultural commodity. There would be laws to regulate its cultivation and treatment as a commodity–largely overseen by the USDA and the Food and Drug Administration (FDA)–but hemp and hemp products would be broadly legal.   
  • Second, you would likely see a complete relaxation on laws for hemp-derived CBD across the nation. In the short-term, the federal government and the states would likely continue enforcing existing laws on CBD sourced from marijuana. These laws vary by state, but if you look at the chart below, you’ll notice that states with broadly legal marijuana laws, like California and Colorado, are also more likely to fully embrace marijuana-sourced CBD.

Beyond that, who knows what’s next for American hemp? The Trump Administration has shown a lukewarm attitude toward the plant so far. Any bill passed by Congress would, of course, face the test of the President’s veto. But domestic hemp is well on its way to becoming a billion-dollar industry. Broad grassroots and political support for the plant is growing. And with hemp’s distinctive profile again cropping up in farmers’ fields from sea to shining sea, it’s hard to see how an American economy fighting to keep its competitive edge can ignore hemp’s potential for much longer.

 

*This chart is intended as a general overview of state-by-state hemp and CBD laws. If you have specific questions about the legality of hemp or hemp products in your area, consult your state’s agriculture department or the USDA.

 

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