Ag Policy Blog

USDA Addresses Some Issues with Hemp Production

Chris Clayton
By  Chris Clayton , DTN Ag Policy Editor
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A hemp plant grown on a Kentucky farm last year for CBD oil. The 2018 farm bill formally removed hemp as a controlled substance, but there are still complications with state laws. (DTN file photo by Chris Clayton)

USDA on Tuesday released a memo signed by its general counsel detailing some authorities regarding hemp under the 2018 farm bill.

The farm bill removed hemp as Schedule I drug under the Controlled Substances Act, but there has been a lot of confusion, especially regarding interstate shipping. The Office of General Counsel states in the memo that after USDA publishes its regulations on the implementation of hemp from the farm bill that, "States and Indian tribes may not prohibit the interstate transportation or shipment of hemp lawfully produced under a State or Tribal plan or under a license issued under the USDA plan."

The memo did not specify exactly when USDA would publish its hemp production regulations.

To grow hemp, people will be required to have a valid USDA issued license; grow under a USDA-approved state or tribal plan; or under a 2014 pilot farm authority. The pilot farm authority will expire one year after USDA sets up a plan to issue licenses.

While states cannot block the shipment of hemp, states and tribes can set up more stringent laws and rules for hemp production than the USDA requirements. Further, the farm bill does not alter the authority of the FDA to regulate hemp as well.

The memo also notes that anyone who has a felony conviction related to a controlled substance will be subject to a 10-year restriction preventing them from producing hemp.

The memo comes out partially because of law enforcement in states such as Idaho that stopped a shipment of hemp from Oregon that was headed towards Colorado. In that case, a preliminary ruling stated Idaho is allowed to prohibit the transport of hemp across state lines because there were no regulations created yet under the 2018 farm bill by USDA.

Staff for the National Ag Law Center at the University of Arkansas spoke about hemp legal issues last week at a farm bill event in Kansas City, Mo. Right now, state laws are coming fast and furious when it comes to growing hemp. The National Agricultural Law Center can't keep up with all the various changes, but right now at least 44 states have some law on the books on hemp production as Georgia, Iowa and Texas have all each passed hemp production bills over the past month.

One of the issues that sticks out is the limit on the tetrahydrocannabinol (THC), the compound that generates intoxication in marijuana. Under the farm bill, THC must be limited to no more than .3% on a dry weight basis. There's no specific testing protocol so states will be allowed to use different testing mechanisms on the hemp crop. There could be complications regarding when and how samples are taken for testing. For instance, a more stressed crop could have higher concentrations of THC. Right now, there's no clear understanding of what would happen if hemp tested at .4% for instance.

There are also questions about EPA approving pesticides for hemp even as most hemp right now is being produced for cannabinol (CBD) oil. And questions remain about how FDA treats CBD oil. FDA has a public hearing scheduled Friday on CBD issues and has an agency working group as well.…

At the moment, however, a lot of people are selling CBD oil and making a broad array of claims about its health. As was mentioned in Kansas City, "No one is claiming it resurrects the dead, but other than that the claims are out there."

On Tuesday, the Transportation Security Administration (TSA) updated its policy to allow some CBD oil and medications on planes. This comes after FDA approved a CBD drug to treat seizures in children with epilepsy.

USDA has released a guidance for hemp and whole farm revenue policies that basically states the act of growing hemp will not void whole farm policies as they did in the past. As of now, USDA has not come up with an insurance policy that covers hemp. The disaster bill tied up in Congress right now also includes a provision stating that USDA will create a whole farm revenue protection insurance policy for hemp by the 2020 crop reinsurance year.

A link to USDA's hemp memo:…

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