The U.S. Department of Agriculture (USDA) released much-anticipated proposed rules governing hemp on Tuesday, and the development was promptly met with applause from lawmakers and industry stakeholders.
While USDA said it is waiting until the conclusion of a 60-day public comment period before working to approve state and tribal hemp plans, the draft document it unveiled signals that farmers will soon be able to take full advantage of the newly legal crop—something that members of Congress from both sides of the aisle have been fighting for since it was federally legalized under the 2018 Farm Bill.
Here’s how people are reacting:
Senate Majority Leader Mitch McConnell (R-KY) wasted no time getting to the Senate floor to celebrate USDA’s announcement. As the chief proponent of the farm bill’s hemp legalization provision, the senator has repeatedly pushed the department to quickly implement regulations to unleash the industry’s potential.
Agriculture Secretary Sonny Perdue “will release a new USDA regulation to implement my initiative and move hemp closer to being treated just like every other commodity,” he said. “This new policy will help farmers around the country continue pioneering this crop into the 21st century. And I’m proud to say Kentucky is prepared to take the lead.”
“This year alone, hemp is growing on more than 26,000 acres in Kentucky across 101 of our 120 counties. It supports hundreds of jobs and tens of millions in sales. So I impressed upon USDA the need to finalize this new framework before the 2020 growing season. And I’d like to thank Secretary Perdue and the USDA for fulfilling this commitment with the announcement we are expecting later this morning.”
McConnell stressed that “our work to support the future of hemp is hardly over,” noting ongoing conversations within the Food and Drug Administration (FDA) about developing rules providing for the lawful marketing of hemp-derived CBD products.
.@SenateMajLdr: @USDA plans to take important next step. @SecretarySonny will release new regulation to implement my initiative & move #hemp closer to being treated just like every other commodity…will help farmers around the country continue pioneering crop into 21st century https://t.co/9zuOk1oMYc
— Senator McConnell Press (@McConnellPress) October 29, 2019
— Senator McConnell Press (@McConnellPress) October 29, 2019
“There will inevitably be ups and downs as this new industry develops, but today’s announcement is another crucial step,” he said. “So, it’s a privilege for me to stand with Kentucky farmers every step of the way. Together, we’ll continue charting hemp’s course into the future.”
.@SenateMajLdr McConnell: "I’d like to thank @SecretarySonny and the @USDA for fulfilling this commitment with this announcement… It’s a privilege for me to stand with #Kentucky farmers every step of the way. Together, we’ll continue charting #hemp’s course into the future." https://t.co/ZNXReIWp9n
— Senator McConnell Press (@McConnellPress) October 29, 2019
Sen. Ron Wyden (D-OR), another vocal advocate for hemp, also weighed in on USDA’s interim rule.
“I’ve long said that if you can make and sell hemp products in America, you should be able to grow hemp in America,” he said in a statement. “Congress passed my bipartisan Hemp Farming Act, and now federal regulations must be updated to reflect hemp’s legal status.”
“The USDA interim rule is an important first step to ending uncertainty for farmers, and I now look forward to reviewing the rule and working with the USDA and FDA to ensure farmers in Oregon and nationwide can fully realize this crop’s economic job-creating potential,” he said.
That sentiment was echoed by Sen. Steve Daines (R-MT), who said that hemp represents “a great opportunity to create jobs and grow Montana [agriculture].” He thanked Purdue and USDA for their “leadership on this issue.”
Hemp in Montana is a great opportunity to create jobs and grow Montana ag.
— Steve Daines (@SteveDaines) October 29, 2019
Sen. Kevin Cramer (R-ND) said his state has “led the way in research and development of hemp for years” and said that the plant is “a new cash crop which is drought resistant, good for our land, & allows for more diversification.”
North Dakota has led the way in research and development of hemp for years.
I urge those same leaders and all of our agricultural stakeholders to work with USDA and offer their insight to ensure this program works best for them.
— Sen. Kevin Cramer (@SenKevinCramer) October 29, 2019
“I’m happy to see this program from USDA is developing the industrial hemp rules and regulations,” Rep. James Comer (R-KY) said in a press release. “This is a key step in helping this emerging industry move forward.”
Pleased that USDA has released #Hemp Regulations. Making hemp a reality was my campaign pledge when I ran for Ag Commissioner in 2011. We did it! And now Kentucky is the model for America in hemp production. #KY1 pic.twitter.com/ngz3siQoKA
— James Comer (@KYComer) October 29, 2019
The congressman also mentioned that legalization hemp was one of his campaign promises when running for agriculture commissioner in Kentucky in 2011.
Another congressman from Kentucky, Rep. Andy Barr (R-KY), touted the role hemp has played in the state’s economy and said USDA’s announcement “will provide certainty to farmers and allow the industry to develop even further.”
I will continue to work in Congress to ensure our hemp farmers have the resources they need to grow their businesses.
— Rep. Andy Barr (@RepAndyBarr) October 29, 2019
“I will continue to work in Congress to ensure our hemp farmers have the resources they need to grow their businesses,” he said.
Rep. Chellie Pingree (D-ME) said she’s pushed for months to have USDA “establish federal rules clarifying legal pathways for #hemp growers” because the lack of regulations caused the industry’s success to be “hindered.”
— Chellie Pingree (@chelliepingree) October 29, 2019
I look forward to working with USDA to ensure this interim final rule works for Maine hemp growers and provides them with eligibility for the full range of USDA programs,” the congresswoman said.
In a statement, Kentucky Agriculture Commissioner Ryan Quarles said his department will immediately act upon USDA’s regulations by conducting “a comprehensive review of our existing hemp program and the U.S. Department of Agriculture’s interim final rule.”
Today @USDA has released their long-awaited hemp rules. Over the next several weeks, the Kentucky Department of Agriculture will conduct a comprehensive review of our existing hemp program and these proposed rules. #KyAg365https://t.co/QaQh5iTlQe
— Commissioner Quarles (@KYAgCommish) October 29, 2019
I would especially like to thank @SecretarySonny, and Under Secretary Greg Ibach for their swift movement on putting together a rule for discussion, not even a year after the 2018 Farm Bill was signed. Read my statement here: https://t.co/QaQh5iTlQe #KyAg365
— Commissioner Quarles (@KYAgCommish) October 29, 2019
“We will have open dialogue with our growers, processors, and industry stakeholders about what this plan means for our state,” he said. “I would like to thank the U.S. Department of Agriculture, Secretary Sonny Perdue, and Under Secretary Greg Ibach for their swift movement on putting together a rule for discussion, not even a year after the 2018 Farm Bill was signed.”
Thank you @SecretarySonny and your team for issuing the guidance well ahead of the 2020 crop year. Kentucky’s hemp program will produce over $100 million in sales this year and has created hundreds of new agriculture jobs! https://t.co/mzTt1HH4FM
— Ryan Quarles (@RyanQuarlesKY) October 29, 2019
Florida Agriculture Commissioner Nikki Fried said that the rules were “welcome news” and that the state’s hemp program “remains on track ahead of the 2020 growing season.”
Working with federal officials, our state hemp program remains on track ahead of the 2020 growing season – and to be a model for the nation.
— Commissioner Nikki Fried (@NikkiFriedFL) October 29, 2019
Iowa Agriculture Secretary Mike Naig said that the state will work to submit a plan to USDA and warned people not to grow hemp in the meantime.
“We look forward to reviewing the proposed hemp program rules provided by the USDA. We will use this information to refine Iowa’s draft hemp plan before we submit it to USDA for approval,” he said. “We are working hard to have Iowa’s hemp program implemented in time for the 2020 growing season. In the meantime, we want to caution people that it is not legal to cultivate, grow or distribute hemp in Iowa until the USDA approves our state plans. We also encourage growers to make sure they have quality seed and a buyer identified before they invest in hemp production.”
Oregon’s Department of Agriculture said it is “reviewing the 161-pages and is working to determine what changes if any need to be made to Oregon’s hemp program.”
The @USDA released its interim rules for hemp production today. @ORagriculture is reviewing the 161-pages and is working to determine what changes if any need to be made to Oregon's hemp program. ODA is also working on a state plan. Stay tuned! Rules here https://t.co/QDRSt0pqiA pic.twitter.com/S5taD2ySy9
— Oregon Dept. of Ag (@ORagriculture) October 29, 2019
The Minnesota Department of Agriculture (MDA) similarly said it will move ahead and submit a regulatory plan for hemp to USDA.
Just like other states, we're excited about the potential for industrial hemp. The MDA is reviewing the interim rule and will work toward submitting our state plan to @USDA. @NASDAnews https://t.co/rd4SUQmNrT
— MN Agriculture Dept (@MNagriculture) October 29, 2019
“Just like other states, we’re excited about the potential for industrial hemp,” the department said in a tweet. “The MDA is reviewing the interim rule and will work toward submitting our state plan to USDA.”
Grant Smith, deputy director of national affairs at the Drug Policy Alliance, applauded USDA’s acceptance of a narrow interpretation of the ban on hemp industry participation by people with felony drug convictions that advocates had urged.
“We are pleased that, in the final rules, we were able to get the felony conviction ban removed for hemp workers, so that they can at least participate in the industry,” he said in a press release. “Unfortunately, more work still remains to completely eliminate the ban, so those with felony convictions can—not just work in the industry—but also lead it by being able to obtain licenses of their own. It is inconceivable that those that have been the most harmed by prohibition would then be further inflicted by being barred from taking part in the new legal economy.”
Eric Steenstra, president of Vote Hemp, said the group is “excited to see the long awaited USDA hemp regulations announced this morning and feel USDA has done a good job.”
“We will be reviewing the regulations and providing comments as we expect some minor changes will be needed to ensure that the regulations work well for American farmers,” he said.
Shawn Hauser, partner and chair of the hemp and cannabinoids practice group at Vicente Sederberg LLP, said USDA’s issuance of hemp rules “represents a major agricultural, economic, and environmental milestone for our country.”
“After decades of being inappropriately classified as a narcotic, hemp is finally going to start being treated as an agricultural commodity in the U.S.,” she said. “Because it is one of the most versatile and sustainable crops on Earth, hemp holds significant promise not only for farmers, manufacturers, and consumers, but also for our planet. This is an exceptionally important development, and its historical significance truly cannot be overstated.”
“The USDA has established a regulatory framework that will serve as an infrastructure for the U.S. hemp economy. These interim rules provide long-awaited clarity, not only for farmers, but also for regulators and service providers like banks and insurance companies, who were hesitant to work with hemp-related businesses without federal guidelines. The rules also provide hemp farmers with important safeguards and benefits generally afforded to agricultural program participants, such as protection against state interference of interstate commerce, and eligibility for federal grants and programs.”
“We are thrilled that the Interim Final Rule has been released, and we are both eagerly poring over the details and encouraging all Hemp Supporters to share their feedback with us,” Jonathan Miller, general counsel for the U.S. Hemp Roundtable, said. “Last Friday, our Board of Directors met privately with USDA Undersecretary Greg Ibach, and we were encouraged by his strong support for the hemp program and his interest in receiving industry feedback. We look forward to working with the USDA to develop the strongest possible domestic hemp program in the months ahead.”
The American Farm Bureau Federation said USDA’s rules “will provide clarity to hemp producers on everything from crop insurance, testing methods, and crop destruction protocols.”
The @USDA_AMS's Domestic Hemp Production Interim Final Rule, announced today, will provide clarity to #hemp producers on everything from crop insurance, testing methods, and crop destruction protocols: https://t.co/ZjE043PJYX pic.twitter.com/skIbSW7NQR
— American Farm Bureau (@FarmBureau) October 29, 2019
Prohibitionist organization Smart Approaches to Marijuana said it had several concerns with the rules, including interstate shipping issues and smokable hemp.
Today, the United States Department of Agriculture @USDA released draft guidelines on the cultivation and production of hemp.
Our statement: 🔽🔽🔽 pic.twitter.com/hF7wnsOx9G
— SAM (@learnaboutsam) October 29, 2019
Supreme Court Justices Discuss Marijuana Policy During Immigration Case Arguments
A Supreme Court hearing on Tuesday concerning the fate of a program protecting immigrants brought to the U.S. as children featured a brief conversation about federal marijuana enforcement policy.
Justices questioned the difference between what President Trump’s administration did—issuing memos ordering the Deferred Action for Childhood Arrivals (DACA) program to be wound down—and what the Obama administration did when his Justice Department told prosecutors not to pursue marijuana cases in states that legalized it.
During the discussion about prosecutorial discretion, Justice Samuel Alito asked if courts have jurisdiction to review or overturn instances where prosecutors make a policy change for a “certain category of drug cases,” by declining to pursue those that involved “lesser amounts of drugs.”
An attorney representing the so-called “Dreamers,” Theodore Olson, said he didn’t think it would be.
But Olson said the comparison wasn’t valid because the DACA program “invited [Dreamers] into the program, provided other statutes which have not been challenged by the government, provided benefits that were associated with that decision, and individuals relied upon that for five years.”
In other words, while the Justice Department has historically issued guidance and allowed for prosecutorial discretion for issues such as drug crimes, DACA rises to a different standard, in part because of the benefits it provided to hundreds of thousands of eligible immigrants.
Justice Neil Gorsuch, a Trump appointee, sought clarification about the “limiting principle” that the attorney was using to distinguish DACA from other prosecutorial discretion decisions.
Olson said it’s “a composite of principles” and a “categorical determination involving a substantial number of people.”
“Let me just stop you there, though, because if it’s categorical and a large number of people, I can think of a lot of prosecutorial decisions involving drug cases, the treatment of marijuana in our society today under federal law—perhaps it would be cocaine, five kilograms,” Gorsuch said in the exchange, which was first noted by Politico. “Whatever is in the attorney general memo affects lots of people on a categorical basis every day.”
The justice appeared to cite the Obama-era Cole memo as an example. That guidance, which was rescinded by then-Attorney General Jeff Sessions in early 2018, advised prosecutors to use enforcement discretion and not target state-legal cannabis programs despite ongoing federal prohibition.
“There’s an entire industry in a lot of states involving marijuana that would argue they’re relying on memos issued by the attorney general that we will not enforce marijuana laws, for example,” Gorsuch said.
“I think that is completely different,” Olson contended. “They are not invited to participate into a program, to reveal the business that they’re in, to come forward, to take advantage of benefits.”
Gorsuch countered that cannabis businesses “have a lot of economic interests at stake” and would argue that “billions of dollars are at stake [and] we’ve relied on the attorney general’s guidance memos.”
Groups Push Congress To Let D.C. Legalize Marijuana Sales
More than a dozen advocacy organizations sent a letter to House and Senate leadership on Wednesday, urging them to allow Washington, D.C. to implement a regulated marijuana market.
While D.C. voters approved an initiative legalizing low-level possession and home cultivation of cannabis in 2014, congressional lawmakers have attached riders to spending legislation each year since that have blocked officials in the nation’s capital from using local tax dollars to enact a retail sales component.
“It is critical that Congress support D.C.’s right to home rule and the ability to spend local tax dollars as they deem fit, especially in regard to the regulation and taxation of marijuana,” the groups—including Drug Policy Alliance (DPA), ACLU of D.C., NORML and Competitive Enterprise Institute—wrote.
In its latest spending bill for Fiscal Year 2020, the House Appropriations Committee stripped the rider from the chamber’s version of the legislation, and Rep. Andy Harris (R-MD), who has sponsored the measure in years past, didn’t attempt to reinsert it. That bill passed the House in June.
But in the Senate version, the rider remained intact, meaning that it will come down to negotiators on a bicameral conference committee to decide which version is sent to President Trump’s desk.
“Current law has interfered with the District’s efforts to regulate marijuana, which has impacted public safety,” the reform groups’ letter states. “Without the ability to regulate marijuana sales, the grey market for marijuana flourishes despite the need and want of the District leadership and residents alike to establish a regulatory model.”
“Such a model would free up law enforcement resources to focus on reducing violent crime,” it continues. “It would also allow legitimate entrepreneurs to start businesses, create jobs and spur economic development.”
The National Cannabis Industry Association, Sentencing Project, Northwestern University School of Law, Leadership Conference on Civil and Human Rights, R Street Institute and Law Enforcement Action Partnership, among other organizations, also signed the letter.
We joined 17 other organizations in sending this letter today to House and Senate leadership.
Here’s what we believe: It is time for Congress to support DC’s right to self-determination and lift the rider prohibiting them from regulating marijuana. https://t.co/RdGRbvELSl pic.twitter.com/lE6Er3A0X6
— The Leadership Conference (@civilrightsorg) November 13, 2019
“Under these conditions—where marijuana is essentially decriminalized, but there is no legal access for adult use—D.C. has been left with a complicated grey market that is both unsafe and a far cry from the racial and economic justice promises of the Initiative 71 campaign,” Queen Adesuyi, DPA’s policy manager for national affairs, said in a press release.
“It’s time that Congress get its hands off of D.C. and allow D.C. Council, Mayor Muriel Bowser, and other relevant D.C. stakeholders to deliver on the promises of equity and justice for those disproportionately impacted by racially-biased enforcement of marijuana laws,” she said.
Bowser, who is a champion of D.C. statehood and cannabis reform, announced in May that she was sending a bill to the District Council that would provide for the retail sale of marijuana in the city. She’s repeatedly implored lawmakers to remove the rider preventing the local government from fully following through on the will of voters.
Congress: Keep your #HandsOffDC and #RemoveTheRider preventing us from establishing a safe & equitable cannabis regime for adult use. Together, with Congresswoman @EleanorNorton, we fight for the rights of 702,000 disenfranchised DC residents.
— Mayor Muriel Bowser (@MayorBowser) October 8, 2019
“Keep your #HandsOffDC and #RemoveTheRider preventing us from establishing a safe & equitable cannabis regime for adult use,” she wrote in October, linking to a petition. “Together, with Congresswoman [Eleanor Holmes Norton], we fight for the rights of 702,000 disenfranchised DC residents.”
Another area of interest for cannabis reform advocates as it concerns the appropriations process centers on the possible expansion of a rider shielding state marijuana laws from federal interference. Since 2014, Congress has enacted such a policy that only covers medical cannabis policies, but this year the House approved a version that would cover adult-use marijuana programs as well. However, the Senate bill contains only the current medical-focused language, meaning that it will be up to conference committee negotiators to decide.
While the current continuing resolution providing funds for federal agencies is set to expire on November 21, lawmakers are discussing another stopgap funding measure that would push the deadline to December 20.
Read the full letter on the D.C. marijuana rider below:
Photo courtesy of Philip Steffan.
Marijuana Prohibition Is Delaying Federal Response To Vaping Crisis, CDC Says
Marijuana’s ongoing illegal status under federal law is delaying health officials’ response to the rise in vaping-related lung injuries and deaths, a top official with the Centers for Disease Control and Prevention (CDC) said on Wednesday.
During a hearing before the Senate Health, Education, Labor and Pensions Committee, Sen. Lisa Murkowski (R-AK) mentioned that her state is the only one in the country that hasn’t experienced reports of lung injuries due to vaping, adding that Alaska has a voter-approved legal cannabis market.
“In our state, retail marijuana is commercialized, it’s tested by our state laboratories,” the senator said. “Is the CDC providing any information to state regulatory bodies—whether it’s Alaska or other states that have legalized—on testing these products for these compounds that are our concern?”
She followed up to ask if there are “any barriers preventing federal officials from working with our state marijuana labs on this topic.”
CDC Principal Deputy Director Anne Schuchat replied that the agency is in touch with state health departments, many of which are involved in regulating the cannabis industry, and that they provide guidance. However, because marijuana remains a federally controlled substance, she said there “are some challenges with shipment of specimens [for testing] because of the scheduling of drugs.”
“I think it’s just delaying it, I don’t think it’s stopping it,” she added.
Watch the marijuana exchange at 1:54:22 into the video below:
But as numerous lawmakers stressed throughout the hearing, there’s no room for delays, as more than 2,000 Americans have experienced lung injuries from vaping and almost 40 have died. CDC recently announced that an analysis of lung fluid samples from 29 patients in 10 states turned up evidence indicating that adulterated vape cartridges containing vitamin E acetate may be the cause.
And over the last six months, there have been 2,051 Americans hurt and 39 have died – including two in Tennessee – from vaping-related lung illnesses, many from vaping with THC, the derivative of marijuana that makes people high.
— Sen. Lamar Alexander (@SenAlexander) November 13, 2019
Schuchat emphasized during a separate House hearing last month that while most vaping cases seem connected to THC-containing products, the vast majority have been obtained from illicit sources that wouldn’t be subject to the same testing standards as those enforced in regulated state markets.
She made similar remarks earlier this month during an appearance on C-SPAN and suggested that federal regulation of THC products could mitigate vaping injuries.
Still, there was a case in Oregon where a man who purchased vaping products from a licensed dispensary later fell ill and died—though officials said it’s not clear whether there’s a direct link at this point. In any case, the CDC official’s point about delays due to shipping complications arising from prohibition raises concerns at a time when data is urgently needed.
Also during the Senate hearing, Mitch Zeller, director of the Food and Drug Administration’s (FDA) Center for Tobacco Products, was asked by Sen. Mike Enzi (R-WY) whether the agency has “jurisdiction over THC products and, if so, what is the authority?”
“I think on a case-by-case basis, when it comes down to the facts, if we were to take an action because of the presence of THC, it would be because the investigation has continued—because we’re going after the supply chain here,” Zeller said. “How did these products get onto the market in the first place?”
The official noted that as a regulatory agency, FDA is not in the business of going after individuals for personal possession or use of THC products; rather they have “investigators on the ground to try to get at how did they get into the chain of distribution and commerce in the first place.”
“If we can identify the responsible party—because with THC we’re talking about an illicit compound so it’s not like someone is going to step forward and say, ‘yeah I did it’—If we can find the responsible party, if we can do the product analysis that shows that the THC is present, with or without these oils that seem to be making it worse, then in theory we could use authorities that we have under the Food, Drug and Cosmetic Act,” he said.
“We could act, depending upon the facts, under Food and Drug authorities,” he said.
The comment was quickly applauded by prohibitionist group Smart Approaches To Marijuana, which has argued that recent vaping issues represent an example of why cannabis legalization efforts should be halted.
During a Senate hearing, a representative from the @FDA admits the agency has the authority to crack down on THC supply chains in response to the #PotVapingCrisis.https://t.co/Ft6l0ifEib pic.twitter.com/BVZYGO7cox
— SAM (@learnaboutsam) November 13, 2019
Sen. Rand Paul (R-KY) shared a different perspective, siding with reform advocates who say that calls to prohibit vaping products in response to the crisis are misguided because that policy change could exacerbate the problem by bolstering illicit sales and leaving consumers less protected against contaminated products.
“It seems to be primarily deaths and horrific medical problems from vaping illegal products,” the senator said. “What we’re going to do in response to that is make more vaping illegal. It seems kind of counterintuitive. It seems if you make more things illegal, maybe you get more people vaping illegal products and you have more problems.”
Photo courtesy of Senate HELP Committee.