Trump Administration Weighs In On Industrial Hemp
The Trump Administration (Administration) made public its views on industrial hemp last week. After speaking at the Governor’s Forum on Colorado Agriculture in Denver on February 21, Greg Ibach, undersecretary for the U.S. Department of Agriculture (USDA), told the press that current hemp regulations are “fairly narrow”. He implied that the Administration does not want to see that change when the Farm Bill is rewritten this year, which will likely include a revision of the industrial hemp provisions.
“Opening the door wide open nationwide, with no restrictions, may not be in the best interests of the hemp industry. One of the challenges we maybe have in the hemp industry is to make sure that demand and production coincide.”
When asked how the USDA and the Administration envision hemp being regulated, Ibach said there’s danger to opening up the market to all states:
“We need to be careful so that we don’t kill the market for hemp by overburdening the market with supply before there is demand for it.”
Ibach went on to state that oversight of industrial hemp should not be with the USDA. Rather, the Administration contends it should be with the U.S. Department of Justice (Justice Department), which includes the Drug Enforcement Administration (DEA).
Although it is true that there have been some concerns about oversupply, these statements are disingenuous, at best. First of all, the Administration routinely boasts about how quickly and thoroughly it eliminates regulations in the market. Its desire to regulate hemp is completely out of character. Second, the idea that the Justice Department and DEA should regulate industrial hemp is ludicrous. In fact, Congress has gone out of its way to get these agencies out of hemp’s way by enacting consecutive appropriations acts which specifically prohibit federal funds from being used to interfere with legal hemp. The most recent appropriations act actually calls out the Justice Department and DEA by name. So what gives?
I think there are three possibilities as to why the Administration has taken this position. The first is a simple lack of education regarding hemp. Without getting into politics at large, we’ve all seen this Administration take public positions on issues about which it has limited knowledge or understanding. Strangely, and hopefully, this is the most likely reason for Ibach’s statements. Despite its meteoric growth and expansion, industrial hemp remains widely misunderstood. If (mis)education is the issue, then that is something that can fairly easily be remedied. My concern is that there is active lobbying against industrial hemp by two powerful forces, Big Pharma and/or the DEA. This leads to the two other likely possibilities for why the Administration may be taking this position.
The second possibility is that so-called “Big Pharma” has the Administration’s ear. Medical marijuana, and, in particular, cannabidiol (CBD) from hemp, is cutting into its profits. Additionally, with several major pharmaceutical companies actively developing cannabinoid based medications, it is conceivable that they are quietly lobbying for greater restrictions on hemp and hemp-derived CBD to limit competition.
The final possibility that comes to mind is that the DEA has been exerting some behind the scenes influence on the Administration. The DEA has been notorious in its attempts to interfere with hemp, starting with blocking importation of seeds to Kentucky shortly after the 2014 Farm Act was enacted. The DEA is currently being sued for interfering with hemp-derived CBD. A bipartisan group of 28 Congressional representatives filed an amicus (“Friend of the Court”) brief in the case, stating:
“[T]he “principle” at the core of the [DEA’s Marihuana Extract Rule] was that DEA did not intend to follow the direction of Congress.”
The idea that the DEA, rather than the USDA, should control a non-psychoactive agricultural product makes no sense whatsoever.
Time will tell whether the Administration holds fast to its position. In the meantime, I recommend letting your political representatives in Congress know your views about hemp.
This article was originally published in the Cannabis Law Report, February 25, 2018. Thanks to Sean Hocking, John Taylor, and the entire CLR group for their excellent journalism about the cannabis industry.
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 by clicking here.
Us soon-to-be farmers are keeping our fingers crossed. Thank you for your updates as these matters continue to develop.
My fingers are crossed, too! Thanks for your comment.
GET THE DEA OFF THE HEMP FARM
Cause and Effect Chain #1:
1. While domestic hemp cultivation was banned GW Pharma a FOREIGN company filed a IND to the FDA for a cannabidiol (CBD) medical formulation derived from marijuana.
2. Once domestic hemp cultivation was allowed per 2014 Farm Bill the HORTICULTURAL Hemp Industry started selling high CBD hemp oil as a dietary supplement nationwide.
3. FDA says since the IND was filed before high CBD hemp oil was marketed as a dietary supplement then the pharmaceutical industry FOREVER gets a MONOPOLY over anything to do with CBD. [Question 13 -> https://www.fda.gov/NewsEvents/PublicHealthFocus/ucm421168.htm#dietary_supplements%5D
4. Meanwhile even as of December 2017 the DEA claims all Horticultural Hemp Products and all CBD products are illegal and schedule 1 so as to prevent growth in the horticultural hemp industry and aid the FDA to hand a MONOPOLY to the pharmaceutical industry over all products that contain CBD.
5. The DEA “COMBINED” with the FDA and pharmaceutical industry to limit the size the HORTICULTURAL Hemp Industry and high CBD hemp oil industry so at to more easily provide a MONOPOLY to the pharmaceutical industry.
6. Horticultural Hemp Products are legal per this blog and many other common legal opinions. So the DEA saber rattled an entire industry and an entire country to prevent the public access to high CBD hemp oil as a dietary supplement to aid the FDA to hand a MONOPOLY over CBD to the pharmaceutical industry. The smaller the industry the easier to squash was the idea.
7. Public will be failed if the pharmaceutical industry is allowed a monopoly over CBD and that is the key element (“public is failed”) we need to prove antitrust violations. (U.S. Supreme Court in Spectrum Sports, Inc. v. McQuillan 506 U.S. 447 (1993)).
8. GW Pharma has begun making false legal statements as of January 2018 -> “…CBD remains a Schedule I forbidden substance in this country and will remain so until or unless it is rescheduled by Congress.” [https://www.cannabizjournal.com/cannabiz-journal-december-2017/2018/1/10/hazy-forecast-gw-pharma-seeks-fda-approval-complicates-cbd-landscape]
Cause and Effect Chain #2:
The DEA is adamant that all consumable hemp products are illegal [that is debatable] so either way it is IMPOSSIBLE for high CBD hemp oil to have been reasonably marketed as a dietary supplement before the IND and “substantial clinical trials made public” yet the pharmaceutical industry finds itself having monopoly over CBD (from any source). The American Public has been failed by the market.
Cause and Effect Chain #3:
We as the American Public have a constitutional right to have access to high CBD hemp oil from Agricultural Hemp as a dietary supplement to maintain our health and wellness. The science is showing that is has a remarkable ability to protect us from toxins and harmful pathogens. Per pubmed.gov high CBD hemp oil is anti-bacterial; anti-viral; anti-fungal and anti-inflammatory.
Cause and Effect Chain #4:
Single Convention on Narcotic Drugs explicitly states that “This Convention shall not apply to the cultivation of the cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes.” USDA defines horticulture as “that branch of agriculture concerned with growing plants that are used by people for food, for medicinal purposes, and for aesthetic gratification.”
Thanks, Carl. I appreciate your synthesis and insight.
2004 HIA vs DEA Judgment Conclusion:
“non-psychoactive hemp is not banned under Schedule I [of the Controlled Substances Act.]…” and “But they cannot regulate naturally-occurring THC not contained within or derived from marijuana-i.e., non-psychoactive hemp products-because non-psychoactive hemp is not included in Schedule I. The DEA has no authority to regulate drugs that are not scheduled, and it has not followed procedures required to schedule a substance.”
Then Read the definition of marijuana in the Federal CSA:
“Marijuana” means all parts of the plants 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, its seeds or resin, including tetrahydrocannabinols. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake or the sterilized seed of the plant which is incapable of germination.
(NOTICE “IT DOES NOT INCLUDE…”)(I furthermore contend with the persuasion of the 9th circuit that the intention of the exception to the exemption (resin from exempted parts) is that a resin could not be pulled from non-psychoactive hemp that would increase THC levels above their natural percentage in non-psychoactive hemp).
Using the persuasion of current case law I contend that if this went to federal court the federal court would rule that the intention of the exception to the exemption (resin from exempted parts) is that a resin could not be pulled from non-psychoactive hemp that would increase THC levels above their natural percentage in non-psychoactive hemp. In 1970 the cannabis plant was not understood clearly enough to articulate this in the wording of the CSA.
More from 2004 HIA vs DEA:
“As the DEA informs us, the “exception to the exception” for resin was apparently included out of concern that the “active principle” in marijuana, later understood to be THC, might be derived from nonpsychoactive hemp and so be used for psychoactive purposes.”
Later understood being the key wording here. Courts have no problem interpreting intentions and ruling on behalf of freedom and liberty granted by the constitution.
So in summary. See this in federal court if needed.