*UPDATE – The passage of the 2018 Farm Bill has been delayed due to disagreements between the House and Senate. A Conference Committee was appointed in September to iron out the differences between the House and Senate’s proposed versions of the 2018 Farm Bill, yet the committee was not able to meet the September 30th deadline, the 2014 Farm Bill’s expiration date. The U.S. Hemp Roundtable reports, “On September 28, the president signed the second Fiscal Year 2019 appropriations “minibus” (H.R. 6157) into law. Primarily, the law funds several critical areas of government – Department of Defense and Labor, Health and Human Services, Education, and Related Agencies. More important to the hemp industry, the law contains a continuing resolution through December 7, 2018, for any appropriations bills not enacted before October 1, 2018. That list of bills includes the FY 2018 Agriculture Appropriations Act and the Commerce, Justice, Science and Related Agencies Appropriations Act for FY 2018, both of which included protections for the hemp pilot program from illegitimate intrusion from law enforcement agencies.” Read more about the pending passage of the 2018 Farm Bill here. It’s no secret that the hemp industry has experienced a massive explosion over the past few years. However, there’s one pending piece of legislation that could permanently change its trajectory: the 2018 Farm Bill. The farm bill is a “package of legislation passed roughly once every five years. Covering programs ranging from crop insurance for farmers to healthy food access for low-income families, from beginning farmer training to support for sustainable farming practices, the farm bill sets the stage for our food and farm systems.” The most recent version, the 2014 Farm Bill, is set to expire on September 30th. As legislators began preparing the 2018 Farm Bill earlier this year, Senate Majority Leader Mitch McConnell (R-KY) included the entire language of the Hemp Farming Act of 2018 in the Senate version of the 2018 Farm Bill. If the 2018 Farm Bill is passed with this language included, it will make hemp fully federally legal for the first time in almost 50 years.
Why Isn’t Hemp Legal Yet?
Summary: When the Controlled Substances Act was passed in 1970, Congress feared law enforcement wouldn’t be able to distinguish marijuana from hemp. Thus, all forms of cannabis, including hemp, became illegal to possess.Back in 1937, Congress passed this little piece of legislation called the Marijuana Tax Act. For years, fear and resentment of marijuana had been cultivating among the public. A few studies linked the use of marijuana to crime and unruly behavior and prompted the federal government to step in. Thus, the Marijuana Tax Act effectively prohibited the possession of marijuana except for those willing to pay taxes for medical or research purposes. Fast forward 32 years to 1969, when Leary v. United States hit the Supreme Court. Timothy Leary was an American psychologist and advocate for the therapeutic potential of psychedelic drugs. During a return trip from Mexico, he was arrested for possession of marijuana in violation of the Marijuana Tax Act. Leary’s defense against the act centered upon the requirement of self-incrimination, which violated the Fifth Amendment. As a result, the court overturned his conviction and ruled the Marijuana Tax Act unconstitutional. However, shortly afterward, Congress passed the Controlled Substances Act in its place. This act classified marijuana and its cannabinoids as Schedule 1 controlled substances, making it illegal to possess any amount of any part of the plant. Unfortunately, hemp fell into this categorization. This was not based on legitimate concerns about dangerous effects – Congress simply worried that law enforcement agents would not be able to distinguish the non-psychoactive plant from its THC-laden partner.
2014 Farm Bill
Summary: The 2014 Farm Bill allowed the production and distribution of hemp as part of state-run research programs.Fortunately, the 2014 Farm Bill made major headway in hemp legalization. This Farm Bill included provisions that allowed growing by state-run hemp research programs. Specifically, “An institution of education or a State department of agriculture may grow or cultivate industrial hemp if (1) the industrial hemp is grown or cultivated for purposes of research conducted under an agricultural pilot program or other agricultural or academic research; and (2) the growing or cultivating of industrial hemp is allowed under the laws of the State in which such institution of higher education or State department of agriculture is located and such research occurs.” Currently, 40 states have established Farm Bill compliant hemp pilot programs and removed barriers to its production. However, even with these allowances in the 2014 Farm Bill, there has still been a great deal of confusion surrounding the legality of hemp. The DEA issued an opinion statement in 2016 asserting that CBD is, in fact, illegal because the agency did not believe it was possible to extract significant quantities of CBD from parts of the plant that are exempt from the Controlled Substances Act (CSA). Likewise, the plant still contains trace amounts of THC. Thus, those found in possession of any hemp products could be prosecuted by law. In response to this statement, the non-profit Hemp Industries Association sued the DEA in 2017 in an attempt to assert the legality of CBD oil and other hemp products. Unfortunately, the court tossed the case on technicalities, citing that the HIA hadn’t participated in an official comment period that had taken place in 2011. Although this wasn’t exactly a win for the hemp industry, it wasn’t really a loss either. The Hoban Law Group, which specializes in cannabis law, weighed in on these events, explaining that “in dismissing the case, the court stated that the Farm Bill actually supersedes the Controlled Substances Act (CSA)…when the CSA conflicts the Farm Act, the Farm Act – and legal hemp and CBD – win out.”
Hemp Legalization in the 2018 Farm Bill
Summary: The Hemp Farming Act in the 2018 Farm Bill would fully legalize hemp across the nation. The Hemp Farming Act language is included in the Senate’s version of the bill but not in the House’s version. A committee is working to iron out the differences between the two bills by September 30th, when the 2014 Farm Bill officially expires.The big breakthrough for hemp legalization emerged in April of this year with McConnell’s Hemp Farming Act of 2018. McConnell, a huge hemp advocate and expert political strategist, presumed these provisions would fare much better as part of the “must-pass” Farm Bill, rather than as a standalone bill. Thus, the full language of the act was included in the Senate’s version of the 2018 Farm Bill. The Hemp Farming Act would make some significant amendments to several existing laws. First, it repeals section 7606 of the Agricultural Act of 2014, which contained the requirement for conducting state-run research in order to grow hemp. Additionally, the act removes hemp from the Controlled Substances Act’s definition of the term “marihuana.” It also amends Schedule I of the Controlled Substances Act by inserting after “Tetrahydrocannabinoids” (THC) the following: “except for tetrahydrocannabinoids in hemp (as defined under section 297A of the Agricultural Marketing Act of 1946).” Finally, the proposal amends the Agricultural Marketing Act of 1946 to provide for State and Tribal regulation of hemp production. The Senate ultimately passed the 2018 Farm Bill with the Hemp Farming Act included with a bipartisan vote of 86-11. The House of Representatives also passed their own version of the 2018 Farm Bill by a much narrower margin of 213-211. The two versions of the bill are drastically different. The Senate version includes the Hemp Farming Act and also makes amendments impacting conservation programs and commodity subsidies for farmers. The House version contains an amendment to the Supplemental Nutrition Assistance Program (SNAP) that would reduce the number of individuals eligible to receive food stamps. This amendment is raising the most concern at present; Democrats are strongly opposed to these cutbacks, and some speculate they may be willing to throw out the Hemp Farming Act in order to compromise. To iron out the differences between the two bills, Congress appointed a Conference Committee, made up of 9 Senators and 40 members of the House. The committee met for the first time on September 5th to begin working towards one final bill to submit to President Trump. The Conference Committee has a great deal of work to complete before its September 30th deadline. There is always a possibility that this deadline may get pushed back; however, most committee members recognize the urgency of meeting this deadline and are optimistic that the new bill will be passed this month.