The US House of Representatives overwhelmingly passed the much anticipated 2018 Farm Bill, which now awaits (this is still so hard to write) President Trump’s signature. As many of you are no doubt aware, the new Farm Bill makes some serious changes to the industrial hemp provisions of the 2014 Farm Bill. Whereas the 2014 Farm Bill “legalized” industrial hemp under very specific – yet also very vague – circumstances, and the DEA begged, borrowed, and stole its way into contradicting the plain face of the bill at every turn, the 2018 Farm Bill takes industrial hemp out of the Controlled Substances Act (CSA), altogether, and blessedly out of the DEA’s purview.
Here are some key provisions in the new Farm Bill all current and future industrial hemp industry stakeholders should know:
- Removes “industrial hemp” from the CSA’s definitions of “marijuana” and “THC.”
- Retains the 2014 Farm Bill’s definition of “industrial hemp” with a few key improvements – “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.”
- Places federal regulation of industrial hemp solely under the purview of the US Department of Agriculture (USDA).
- Provides for states and Native American tribes who wish to regulate their own industrial hemp programs to submit a proposal to the USDA Secretary for approval.
- States without approved industrial hemp programs will be subject to federal regulations promulgated by the USDA Secretary.
- Specifically allows for interstate commerce in federally compliant industrial hemp and prohibits states from outlawing transportation of federally compliant industrial hemp within their state.
- Does allow for states to pass more restrictive regulation of industrial hemp than federal regulations.
- Specifically states that 2018 Farm Bill passage does not affect or modify FDA’s regulations or guidelines on industrial hemp.
- Leaves current state industrial hemp agricultural pilot programs in effect until one year after the USDA Secretary establishes a federal regulatory plan.
Note the last two bullet points. Although the 2018 Farm Bill fully removes industrial hemp from the CSA, it explicitly leaves the FDA’s ability to regulate it. This includes FDA’s current prohibition on: (1) the addition of hemp-derived CBD to food; (2) marketing CBD as a “dietary supplement”; and making any health claims about CBD products. My inclination is that the FDA may take more aggressive actions after the passage of the 2018 Farm Bill. The Bill also specifically allows the USDA to share information on licensed hemp producers with other federal agencies, including law enforcement. Also, note that the current state industrial hemp programs will remain in effect for at least a year, so all industrial hemp activities must conform with the applicable and current state law.
Please feel free to contact our industrial hemp experts if you have any questions and look out for future posts on this dynamic and everchanging subject!
