Kentucky Lawyer: Sen. McConnell ‘Very Optimistic’ on Hemp Farming Act of 2018

The board of directors of a national business association is bullish about the fate of the Hemp Farming Act of 2018 after meeting this week with Senate majority leader Mitch McConnell.

McConnell, a Republican from Kentucky, “told us that he is very optimistic that we will see legislation passed this year,” said Jonathan Miller, general counsel to the U.S. Hemp Roundtable.

Miller said he couldn’t overstate the significance of the Hemp Farming Act of 2018 (Senate Bill 2667).

“It would make hemp permanently an agricultural commodity, not a controlled substance,” Miller, a Kentucky-based attorney with the law firm Frost Brown Todd LLC, said in an interview.

The hemp industry has blamed the Drug Enforcement Administration (DEA) for causing disruptions to businesses growing, cultivating and marketing hemp under state industrial hemp pilot programs authorized under Section 7606 of the Agricultural Act of 2014, otherwise known as the farm bill.

Several sources lobbying for passage of SB 2667 said the bill would clearly convey DEA has no authority over hemp.

“It would take DEA out of the picture,” Miller proclaimed. “For any hemp crops or products that are less than .3 percent THC [delta-9 tetrahydrocannabinol], they would no longer be subject to the Controlled Substances Act or the involvement of the Drug Enforcement Administration.”

Said Joy Beckerman, president of the Hemp Industries Association (HIA): “It is green light, go-away DEA. It’s the USDA [U.S. Department of Agriculture] where this belongs.”

SB 2667, hemp advocates said, clearly encompasses hemp extracts and other products containing cannabidiol (CBD). It defines hemp as meaning “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 8 tetrahydrocannabinol concentration of not more than 90.3 percent on a dry weight basis.”

DEA has asserted CBD is a Schedule I controlled substance within the CSA, a position challenged by the HIA in a lawsuit pending before the U.S. Court of Appeals for the Ninth Circuit.

If passed into law, the Hemp Farming Act of 2018 would clarify what HIA has argued in federal court, that hemp-derived CBD is not subject to the CSA.

“There would be no longer any doubt that hemp-derived CBD—as long as it’s less than .3 percent THC—is not a controlled substance and is legal as a federal matter,” Miller said.

Under SB 2667, USDA would have sole authority to promulgate federal guidelines and regulations pertaining to the production of hemp.

A state or Indian tribe seeking to exert primary regulatory authority over the production of hemp within their respective jurisdictions would submit a plan to the U.S. Agriculture Secretary and need to establish conformity with certain requirements, including a procedure for testing THC concentration levels.

The Hemp Farming Act of 2018 contemplates the eventual demise of pilot programs and full-fledged commercial production of industrial hemp. While it would require the Agriculture Secretary to “conduct a study of agricultural pilot programs to determine the economic viability of the domestic production and sale of industrial hemp,” section 7606 of the Agricultural Act of 2014 would be repealed one year after enactment of the hemp legislation.

“This is full-on legalization, removal from the Controlled Substances Act and commercialization of the hemp industry—letting it roll,” Beckerman said.

“McConnell’s concept is that we’ve gone through four years of an experiment, [a] pilot program experiment,” Miller observed. “It has been an unqualified success, and now it’s time to make it permanent.”

In 2017, 19 states grew 25,713 acres of hemp; 1,456 state hemp licenses were issued and 32 universities conducted hemp research, according to Vote Hemp, a nonprofit organization founded in 2000 by members of the hemp industry and incorporated in the District of Columbia.

In an interview, Eric Steenstra, president of Vote Hemp, said the Hemp Farming Act of 2018 would achieve what he has been trying to accomplish since his organization was founded nearly 20 years ago: “treating industrial hemp as an agricultural crop and letting American farmers grow it on a commercial basis.”

Commenting on McConnell’s ability to accomplish things as Senate majority leader and a member of the Senate Agriculture Committee, Steenstra said, “I feel pretty good about our chances.”

With the Agricultural Act of 2014 expiring in September 2018, some sources, including Steenstra, expected hemp legislation to end up in a farm bill. The idea is hemp legislation would have a better chance of being passed into law if it was part of a farm bill than as a standalone piece of legislation.

“The mechanics are still being worked out right now,” Miller responded when asked if the hemp legislation would be introduced as an amendment to a farm bill. But the lawyer said Sen. McConnell suggested attaching the hemp legislation “somehow to the farm bill might be its most successful route.”

In 2017, Rep. James Comer (R-Kentucky) and several colleagues introduced hemp legislation in the House of Representatives. The Industrial Hemp Farming Act of 2017—HR 3530—included some language favored by the hemp industry. For instance, the bill expanded hemp cultivation to tribal lands, reservations and U.S. territories.

Other portions of the bill were criticized, including one that provided for “administrative inspections” of hemp farms under the CSA, the law DEA enforces.

HIA and others are fully behind the Hemp Farming Act of 2018. Comer is expected to introduce a companion version of the bill in the House.

Hemp’s “general wellness and nutritional benefits have inspired the U.S. Senate—or at least Mitch McConnell and the other architects—to drop the word ‘industrial’ entirely,” Beckerman observed, “which I think is revolutionary.”