On May 28, the U.S. Department of Agriculture (USDA) issued a legal opinion that discusses the hemp-related provisions of the 2018 Farm Bill. Two of the issues addressed in the opinion are noteworthy:
The USDA opines that states and Indian tribes may not prohibit the interstate transportation or shipment of hemp lawfully produced under the 2014 Farm Bill. This conclusion is likely to have a meaningful impact on hemp produced during the current growing season under 2014 Farm Bill programs and pending legal matters involving interstate shipments of hemp. It will be interesting to see what, if any, weight the Ninth Circuit Court of Appeals gives to the USDA position in the Big Sky Scientific case we previously covered here. Further, it will be interesting to see how states adjust to the USDA position.
Hemp and the CSA
The USDA memo opines, “hemp has been removed from schedule I of the Controlled Substances Act and is no longer a controlled substance.” The memo notes that removal provisions in the 2018 Farm Bill were self-executing and do not require further action by the USDA. Taken at face value, this position appears benign. We have previously covered the Controlled Substance Act’s (CSA) definition of marihuana here. Please note that we continue to use the spelling “marihuana” given its use as a defined term in the CSA.
Prior to the 2014 and 2018 Farm Bills, certain parts of the cannabis plant were not controlled substances (e.g., mature stalks and sterilized seeds) because of a specific carve out within the definition of marihuana. Following the 2018 Farm Bill, the term marihuana does not include “hemp” as defined in section 297A of the Agricultural Marketing Act of 1946. That section of the Agricultural Marketing Act defines hemp as cannabis having a THC concentration of less than 0.3% on a dry weight basis.
Marihuana and THC are separately included as Schedule I controlled substances within the CSA. THC that is not marihuana is still a Schedule I substance. The 2018 Farm Bill addressed the THC issue by excluding THC “in hemp.” This raises the question and potential conflict that any THC derived from hemp is not a controlled substance whereas THC derived from cannabis not meeting the definition of hemp is a controlled substance. Potential conflicts are likely to arise due to hemp derivatives. If THC in hemp is not a controlled substance, then one might argue that THC derived from hemp is similarly not a controlled substance.
Many of us might be familiar with the saying that hemp does not get you high, or that the quantity of hemp that you would need to consume to get you “high” is too much for any one person. However, if we can legally concentrate or extract THC in hemp without the resulting product becoming a controlled substance, then enforcement problems arise. THC distillate from hemp? This is arguably not a controlled substance. THC from cannabis that is not hemp? Still a controlled substance. This distinction is likely to make cannabis extract and concentrate enforcement efforts futile.
The definition of hemp depends on the plant’s concentration of THC. Our unscientific understanding of THC production within cannabis is that THC production generally does not occur until the flowering or fruiting stage. This might mean that all cannabis seeds and immature plants, regardless of their potential to produce THC in excess of the hemp limit, fit the CSA carve outs for hemp. This could have a significant impact on importing THC-heavy cannabis seeds into the U.S., and federal enforcement efforts relating to cannabis seeds and immature plants.
A recent case in Minnesota highlights the problem. A local hemp farmer faces felony charges over products containing THC levels of greater than 3% — more than 10 times the limit for hemp. According to this news article, the farmer explained that when “he concentrated [the hemp into] the oil, the THC levels can go from 0.3 percent to 2 percent.” It remains unclear whether there is a one-time hemp test for THC that applies sometime after harvest, or if hemp and hemp derivatives must continually fall below 0.3% THC. The news article quotes Thomas Gallager, a criminal defense attorney that is also on the board for the local NORMAL chapter, “federal law exempts THC derived from hemp.” This particular case may turn on the state’s controlled substances act rather than federal law. Federal law will likely remain unsettled until there is clearer guidance from the DEA or other federal authorities.