The 2014 Farm Act Has Expired- What Now?

Where does industrial hemp stand now that the 2014 Farm Act has expired?

As I discussed here, it was likely that the 2018 Farm Bill would not pass before the 2014 Farm Act expired on September 30. Well, my prediction (along with the predictions of most other commentators) was accurate. Congress has not yet enacted the 2018 Farm Bill. It is likely to pass within the next 8 weeks or so. However, what is the current legal status of industrial hemp now that the 2014 Farm Act has expired?

Fortunately, industrial hemp remains lawful under the pilot programs that have already been created. The industrial hemp provisions of the 2014 Farm Act did not terminate. They will remain in effect unless and until Congress changes the law. In fact, the 2018 Farm Bill includes provisions to phase out the industrial hemp pilot program. These provisions are necessary since the industrial hemp provisions of the 2014 Farm Act do not self-terminate.

Second, Congress continues to protect industrial hemp through provisions in appropriations acts that prohibit the use of federal funds to interfere with the “transportation, processing, sale, or use” of industrial hemp “within or outside the State in which the industrial hemp is grown or cultivated.” This prohibits any agency that receives federal funds, including state agencies, from interfering with industrial hemp.

Congress has protected hemp in this way through several consecutive spending acts. The most recent one, the “Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019 and Continuing Appropriations Act, 2019” was enacted on September 28, 2018 and remains in effect through December 7, 2018. It continues the hemp protections found in the FY18 Agriculture, Food and Drug Administration, Rural Development, and Related Agencies Appropriations Act, which include the following provisions related to industrial hemp:

SEC. 537. None of the funds made available by this Act may be used in contravention of section 7606 (‘‘Legitimacy of Industrial Hemp Research’’) of the Agricultural Act of 2014 (Public Law 113–79) by the Department of Justice or the Drug Enforcement Administration. [Page 239]

SEC. 729. None of the funds made available by this Act or any other Act may be used—
(1) in contravention of section 7606 of the Agricultural Act of 2014 (7 U.S.C. 5940); or
(2) to prohibit the transportation, processing, sale, or use of industrial hemp, or seeds of such plant, that is grown or cultivated in accordance with subsection section 7606 of the Agricultural Act of 6 2014, within or outside the State in which the industrial hemp is grown or cultivated.
[Page 98]

Despite the above protections, we look forward to passage of the 2018 Farm Bill, which will both expand legal protections for hemp, including by making it lawful in all 50 states, and explicitly make it, and cannabinoids derived from it, lawful. Although they are lawful now in some circumstances when derived from industrial hemp, the current law is complex, somewhat convoluted, and promotes a significant amount of confusion. 

Posted October 2, 2018

Rod Kight is a lawyer based in Asheville, NC. He is licensed in North Carolina and Oregon and represents legal cannabis businesses. You can contact him directly here.

4 comments on “The 2014 Farm Act Has Expired- What Now?Add yours →

    1. Mindy- Good question. Unfortunately, the legal status of hemp derived CBD oil is complicated. It is lawful at the federal level if it is derived from the mature stalks of the cannabis plant or from industrial hemp that contains delta-9 THC concentrations that do not exceed 0.3% on a dry weight basis and is grown pursuant to a state’s pilot program. Hemp derived CBD oil’s legal status depends on its source: it is legal or not depending on whether its source is legal. Both the mature stalks and industrial hemp are lawful exceptions to “marihuana” (statutory spelling), which is illegal. (Marihuana CBD oil is illegal.) Even thought hemp derived CBD oil is lawful at the federal level when it comes from the stalks or industrial hemp, it is not currently lawful under the laws of every state. Also, depending on how it is made and/or marketed it may or may not be compliant with the Food, Drug, and Cosmetic Act, which is enforced by the FDA. Some of this may change if/when the 2018 Farm Bill is passed later this year. If enacted it will expand the legal status of hemp. Feel free to reach out directly to me if you have more specific questions (rod@kightlaw.com). -Rod

  1. What about CBD Isolate. In many cases isolate tests 99.9% pure. Wouldn’t using this mitigate the problem of delta-9 THC concentrations that do not exceed 0.3% ? It also mitigates the issues of other impurities that show up in concentrated oils such as insecticides.

    Interested to hear your view of the benefits/down side of CBD isolate.

    1. Kurt- From a legal standpoint, cannabidiol (CBD) is not a controlled substance under federal law if it is derived from industrial hemp or the mature stalks of the cannabis plant since both are exceptions to the definition of “marijuana” under the Controlled Substances Act (CSA). All marijuana derived CBD is schedule 1 (most restrictive), with the exception of Epidiolex, an oral formulation of CBD that was approved as a drug for treating epilepsy, which is schedule 5 (least restrictive). The bigger issue is FDA regulation, which I write about here.

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