WHAT IS HEMP?
Hemp, also referred to as industrial hemp, is a variety or species of the genus plant Cannabis Sativa L and is distinct in that it does not contain greater than 0.3% tetrahydrocannabinol (THC) on a dry weight basis. The low concentration of THC contained in the hemp plant does not cause the psychosomatic effects that are associated with marijuana varieties of Cannabis which contain higher concentrations of THC.
Cannabidiol (CBD) is a dominant phytocannabinoid, among more than one hundred other phytocannabinoids, identified in hemp and unique to the Cannabis plant genus. Hemp-derived CBD is a naturally occurring compound concentrated in the resinous flower of the plant. CBD, among many others of the more than one hundred phytocannabinoids in hemp, does not cause a psychosomatic or intoxicating experience.
Hemp-derived compounds are widely promoted today, but hemp has a long history as an international and domestic commodity that produces high-quality fibers and nutrient dense seeds and seed oil. Hemp has a rich history from its use in textiles in ancient (B.C.) Asia where Cannabis is indigenous to the time it was mandated by early-American settlers of the seventeenth century as a necessary crop for the good of the nation.
Hemp cultivation exists around the world and has only recently been legal to grow in the United States since 2014 with restrictions. China, France, Canada and Australia are all large-scale producers and exporters of hemp, and the U.S. is known to be the largest buyer of hemp worldwide. President Obama enacted the American Agricultural Act of 2014 (the “2014 Farm Bill”), which included Section 7606, titled “The Legitimacy of Industrial Hemp Research.” Section 7606 of the 2014 Farm Bill allowed the states to pass legislation giving authority to their state Departments of Agriculture to promulgate rules and regulations and also allow the licensing of hemp pilot programs, including marketing research.
On December 20, 2018, President Trump enacted the Agricultural Improvement Act of 2018, aka the 2018 Farm Bill, which amended the American Agricultural Marketing Act of 1946 and added a definition for hemp as an agricultural commodity.
HEMP IS LEGAL.
President Trump signed the Agricultural Improvement Act of 2018 ( the “2018 Farm Bill”), on December 20, 2018. Now, hemp is defined as an agricultural commodity in §297A of the Agricultural Marketing Act of 1946, as follows:
The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.
What Does the Farm Bill Legally Do?
Specifically, the Farm Bill serves to clarify and affirm the rightful place of raw hemp as an agricultural commodity, alongside corn and wheat. Notably, these hemp provisions in the Farm Bill state, in part:
Hemp is expressly excluded from treatment as “marihuana” under the federal Controlled Substances Act (“CSA”), meaning hemp is not, and cannot be considered, a controlled substance under federal law and that U.S. Drug Enforcement Administration (“DEA”) does not maintain any authority over hemp;
Instead, the U.S. Department of Agriculture (USDA) shall regulate the cultivation of hemp at a federal level (to the exclusion of DEA) and is instructed to implement regulations according to the Farm Bill;
“Hemp” is defined more expansively to include reference to – and protect – cannabinoids, derivatives and extracts;
Individual states retain the right (which many exercised in early 2019 and more are anticipated to do so in early 2020) to enact legislation and promulgate regulations at the state and local level, subject to approval by USDA;
Hemp farmers are specifically authorized to access crop insurance, grants and certifications;
Tribal governments are specifically authorized to cultivate and produce hemp;
Interference with interstate transport of hemp and hemp products is expressly prohibited;
The 2014 version of the Farm Bill is to be repealed within 1 year USDA implements its program; and
The Farm Bill does not affect the Federal Food, Drug and Cosmetic Act, which provides the U.S. Food and Drug Administration (“FDA”) authority to regulate permissible ingredients in ingestible products.
USDA is undergoing a rulemaking process, starting in March 2019 and expected to be finalized in late 2019, ahead of the 2020 planting season, upon the finalization of which, USDA will review and approve state plans submitted by a state department of agriculture;;
Accordingly, a flurry of states enacted hemp legislation in accordance with the 2018 Farm Bill in anticipation of USDA regulation in late 2019, and a number of additional states are expected to enact or amend legislation in early 2020 when many legislatures re-convene;
In the meantime, the 2014 Farm Bill remains intact to serve as a “bridge” to full implementation of the 2018 Farm Bill;
Correspondingly, FDA is undertaking a review and rulemaking process concerning hemp-derived products, including those with cannabinoids, starting with a May 31, 2019 hearing, to ensure such products are appropriately contemplated as permissible ingredients; and
Resolve bumps in the road that are likely to arise as federal, state and local legislators and regulators work to implement the tenets of the Farm Bill over the coming months and years.
HLG Hemp Practice Group
Below are examples of how hemp is being censored: