A Call for Clarification on Hemp Reform.

 I am pleased to announce that Kamran Aryah, an associate attorney in the firm, will be writing regular posts for the Kight on Cannabis blog. Kamran has spent considerable time during the past several months delving into state by state summaries of industrial hemp laws across the country for some of our clients. This post, his first, is the result of his work. -Rod

Kamran Aryah, August 6, 2018:

Jon Stewart, the former late night TV personality and host of The Daily Show, once quipped: “For America’s State Legislatures, the arc of the moral universe bends not toward justice, but backwards and up their own asses.” This tongue-in-cheek criticism refers to the hodgepodge of often misleading state laws and contains more than a kernel of truth, especially when applied to hemp reform in the USA. While many states have established industrial hemp pilot programs that properly interpret the 2014 Farm Act, a handful of others have either misinterpreted its purpose, botched the definitions of key terms, or both, creating confusion in an industry in desperate need of clarification.

The 2014 Farm Act exempts industrial hemp (Cannabis that contains less than 0.3%THC) from the definition of “marijuana” under the Controlled Substances Act (CSA), meaning that hemp is not a federally controlled substance when cultivated pursuant to a state pilot program. Since states generally model their own controlled substances lists after the federal standard, it is surprising the extent to which certain states have mischaracterized the federal approach to “cannabis”, “marijuana” and “hemp”. What follows are examples of instances where states have mischaracterized the federal legal approach to cannabis, improperly defining “hemp” and creating confusion in the law.

Florida properly defines industrial hemp based on the 0.3% THC threshold in line with federal law, but mischaracterizes both marijuana and cannabis. F.S. 893.03 entitled “Drug Abuse Prevention and Control” lists “Cannabis” under its Schedule I control at subsection (1)(c)(7). The statute fails to accurately characterize cannabis and marijuana. F.S. 893.02 (3) states:

“Cannabis means all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. The term does not include “marijuana,” as defined in s. 381.986, if manufactured, possessed, sold, purchased, delivered, distributed, or dispensed, in conformance with s. 381.986.”

Florida distinguishes “cannabis” from “marijuana” based on where it is sold. This is based neither on legal precedent, nor a common understanding of these terms. Cannabis is a botanical term that can refer both to “marijuana” and “industrial hemp” which are each treated differently under federal law based on a 0.3% THC threshold.

West Virginia is another example of a state with a pilot program with language that misinterprets federal law. At the bottom of the West Virginia Department of Agriculture application for industrial hemp cultivation there is a disclaimer stating:

“By signing below the applicant acknowledges that industrial hemp is a Schedule 1, Federally Controlled Substance and agrees to the following terms and conditions:”

Not only is this an inaccurate statement of federal law, it is ironic considering the fact that any crop of industrial hemp grown by someone who used this form and was granted a registration with the West Virginia Department of Agriculture would be exempt from the CSA under the Farm Act.

Connecticut does not have an industrial hemp pilot program, but is another example of a state that has broadly mischaracterized industrial hemp and the federal legal approach to Cannabis. In Connecticut, the definition of marijuana explicitly lists Cannabidiol and other cannabinoids making CBD a controlled substance in Connecticut. CBD is not listed on any federal drug schedule. Under federal law, the source (whether from legal hemp or illegal marijuana) of CBD is the threshold question for determining legality.

New York also mischaracterizes federal law relating to industrial hemp in a portion of the statute outlining the authority for the pilot program, stating:

Federal: Section 7606 of the 2014 federal Farm Bill indicates that state departments of agriculture and institutions of higher education may undertake hemp research pilot programs to study the growth, cultivation, or marketing of industrial hemp, notwithstanding the fact that hemp is classified by the federal Drug Enforcement Agency (DEA) as a Class 1 Controlled Substance. [emphasis added]

Again, this interpretation is a misstatement of federal law concerning Industrial Hemp. Hemp is not a “class 1 substance according to the DEA”, when it is grown under a state pilot program, and pursuant to the Farm Act.

The inconsistency on industrial hemp legalization can cut both ways, with some states explicitly authorizing the legal market for industrial hemp and CBD within their state. Alaska is an example of a progressive state on this issue. The Alaska industrial hemp program amends AS § 03.05.076, which states:

Industrial hemp is an agricultural crop in the state… (b) An individual registered under this section may: (1) produce industrial hemp, including growing, harvesting, possessing, transporting, processing, selling, or buying industrial hemp;

Alaska has other progressive provisions, allowing alternative uses for hemp that tests between 0.3% and 1% THC, and condoning a legal market for CBD by exempting it from both marijuana and hash.

Industrial Hemp is a rapidly expanding industry that lacks clarification as to where and to what extent products from industrial hemp are legal. The Hemp Reform package contained in the 2018 Farm Act would reaffirm the federal legal status of industrial hemp throughout all 50 states, allow cultivation outside of the pilot program model, and provide clarity to growers, processors, distributors, and law enforcement agencies.

The 2018 Farm Act with the Hemp Bill amendments passed the Senate in June of this year.