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USDA Announces Two Temporary Changes To Restrictive Hemp Rules

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The U.S. Department of Agriculture (USDA) announced on Thursday that it will be temporarily delaying enforcement of two provisions of its hemp regulations.

Hemp producers will not be required to use a laboratory registered with the Drug Enforcement Administration (DEA) to conduct potency tests on their crops, at least for now. And for the time being, they won’t have to dispose of so-called “hot hemp” containing excess THC through DEA or a law enforcement body.

“Because currently there isn’t sufficient capacity in the United States for the testing and disposal of non-compliant hemp plants, USDA has worked hard to enable flexibility in the requirements in the Interim Final Rule for those issues,” USDA Under Secretary for Marketing and Regulatory Programs Greg Ibach said in a press release announcing the enforcement decision.

These changes come in response to feedback from industry stakeholders, who argued that the policies included in USDA’s interim final rule on hemp would prove cost prohibitive for farmers and inhibit the growth of the market since the crop was federally legalized under the 2018 Farm Bill.

USDA received significant feedback from lawmakers and hemp interests during a public comment period that ended last month. The department said earlier this month that it was open to making certain changes based on those responses, but it also said certain proposed changes—such as increasing the threshold of allowable THC in hemp—are statutory matters that it cannot revise on its own.

A follow-up comment period will launch after this current planting season, USDA said.

In the meantime, the laboratory testing and disposal requirements are being delayed until October 31, 2021, or until a final rule is released. USDA said the delay will “serve as a temporary measure to allow a smooth transition into regular enforcement” and give DEA enough time to increase “registered analytical lab capacity.”

“Through these conversations, we have learned that these provisions will serve as a significant hindrance to the growth of a domestic hemp market at this nascent stage,” USDA said. “For instance, we now better understand how the limited number of DEA-registered labs will hinder testing and better understand the associated costs with disposing of product that contains over 0.3 percent THC could make entering the hemp market too risky.”

“Because USDA is exercising its enforcement discretion to adopt a temporary policy of non-enforcement for producers who—due to the dearth of registered laboratories and limited access to reverse distributors or law enforcement disposal—are unable to comply with the testing and disposal procedures promulgated through the [interim final rule], we believe that this guidance is a statement of agency policy not subject to the notice and comment requirements,” the notice states.

Hemp will still have to be tested, and it must be disposed if it contains too much THC, but processors will be able to use other facilities and methods and still be in compliance.

The department stressed that laboratories that aren’t registered with DEA will have to “adhere to the standards of performance as outlined within the [interim final rule].” For example, they must test “total THC employing post-decarboxylation or other similarly reliable methods” and “make arrangements to be compliant with registration requirements before this period of delayed enforcement expires.” DEA will review applications from laboratories who wish to participate.

USDA also included a guideline for compliant, alternative disposal methods. The department’s intent is “that these methods allow producers to apply common on-farm practices as a means of disposal while rendering the controlled substance non-retrievable or non-ingestible,” it said. A list of alternative disposal options include burning, composting and burying hemp.

It added that the department will “conduct random audits of licensees to verify hemp is being produced in accordance with” regulations.

“One of the top considerations in making these changes was the desire to provide additional options that minimize, to the extent possible, the resource impact to state and local law enforcement in handling hemp that is out of compliance,” Ibach said. “We look forward to partnering with producers, states, tribes and other stakeholders to deliver regulations that work for everyone.”

The new announcement could help clear up some confusion about comments that Ibach made at an agriculture policy conference on Wednesday. According to the advocacy group Vote Hemp, there has been misreporting that suggested the official said the provision requiring DEA-registered labs to test hemp was being eliminated.

A recording of the discussion that Vote Hemp released shows that the undersecretary said enforcement of the provision would simply be delayed for the current planting season.

While USDA is still in the process of developing rules for the crop, it has started accepting state regulatory plans for hemp. Wyoming and Washington State became the latest to have their proposals approved. Previously, USDA accepted regulations from Texas, Nebraska, Delaware, Louisiana, New Jersey and Ohio, as well as several tribal plans.

Meanwhile, at the same agriculture conference that Ibach spoke at, the commissioner of the Food and Drug Administration admitted that it would be “a fool’s game” to try to keep hemp-derived CBD products off the market.

Number Of Banks Reporting Cannabis Business Clients Dips After Hemp Rules Change

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Kyle Jaeger is Marijuana Moment's Sacramento-based senior editor. His work has also appeared in High Times, VICE and attn.

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Pennsylvania Senators Will Consider DUI Protections For Medical Marijuana Patients At Hearing

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A Pennsylvania Senate committee is set to take up a bill next week that would protect medical marijuana patients from being prosecuted under the state’s “zero tolerance” DUI laws.

The legislation, sponsored by Sen. Camera Bartolotta (R), would amend state statute to require proof of active impairment before a registered patient can be prosecuted for driving under the influence. The current lack of specific protections for the state’s roughly 368,000 patients puts them in legal jeopardy when on the road, supporters say.

Members of the Senate Transportation Committee will explore the issue at a hearing on Tuesday.

Bartolotta first introduced an earlier version of the bill in June 2020. She said at the time that the state needs to “ensure that the legal use of this medicine does not give rise to a criminal conviction.”

Months after the standalone reform legislation was introduced, the Pennsylvania House approved a separate amendment that would enact the policy change.

Pennsylvania legalized medical marijuana in 2016, with the first dispensaries in the state opening in 2018. But the state’s zero-tolerance DUI law still doesn’t reflect those changes. Because it criminalizes the presence of any THC or its metabolites in a driver’s blood—which can be detected for weeks after a person’s last use—the law puts virtually all medical marijuana patients at risk, even if it’s been days since their last use and they show no signs of impairment.

Bartolotta’s bill would require officers to prove a registered patient was actually impaired on the road.


Marijuana Moment is already tracking more than 1,200 cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.

Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.

“Unimpaired patients currently face the risk of being arrested, prosecuted and convicted for using medicinal marijuana that has no bearing on their ability to drive a vehicle,” the senator wrote in a cosponsorship memo late last year. “Given the very serious consequences of a DUI conviction, my legislation will provide critical protections for medicinal cannabis patients by ensuring responsible use of their legal medicine does not give rise to a criminal conviction.”

Several legal cannabis states have enacted per se THC limits in blood, similar to blood alcohol requirements. However, evidence isn’t clear on the relationship between THC concentrations in blood and impairment.

A study published in 2019, for example, concluded that those who drive at the legal THC limit—which is typically between two to five nanograms of THC per milliliter of blood—were not statistically more likely to be involved in an accident compared to people who haven’t used marijuana.

Separately, the Congressional Research Service in 2019 determined that while “marijuana consumption can affect a person’s response times and motor performance… studies of the impact of marijuana consumption on a driver’s risk of being involved in a crash have produced conflicting results, with some studies finding little or no increased risk of a crash from marijuana usage.”

Outside of this bill, Pennsylvania lawmakers have continued to pursue adult-use legalization in the state. Earlier this year, two legislators circulated a memo to build support for a comprehensive reform bill they plan to introduce, for example.

A bipartisan Senate duo is also in the process of crafting legislation to legalize cannabis across the commonwealth. They announced some details of the proposal earlier this year, but the bill has yet to be formally introduced.

Outside the legislature, Gov. Tom Wolf (D) said earlier this year that marijuana legalization was a priority as he negotiated the annual budget with lawmakers. However, his formal spending request didn’t contain legislative language to actually accomplish the cannabis policy change.

Wolf, who signed a medical cannabis expansion bill in June, has repeatedly called for legalization and pressured the Republican-controlled legislature to pursue the reform since coming out in favor of the policy in 2019. Shortly after he did that, a lawmaker filed a separate bill to legalize marijuana through a state-run model.

Lt. Gov. John Fetterman (D), who is running for U.S. Senate, previously led a listening tour across the state to solicit public input on legalization. He’s credited that effort with helping to move the governor toward embracing comprehensive reform. The lieutenant governor even festooned his Capitol office with marijuana-themed decor in contravention of a state law passed by the GOP-led legislature.

Fetterman has also been actively involved in encouraging the governor to exercise his clemency power for cannabis cases while the legislature moves to advance reform.

In May, Wolf pardoned a doctor who was arrested, prosecuted and jailed for growing marijuana that he used to provide relief for his dying wife. That marks his 96th pardon for people with cannabis convictions through the Expedited Review Program for Non-Violent Marijuana-Related Offenses that’s being run by the Board of Pardons.

Overall, legalization is popular among Pennsylvania voters, with 58 percent of residents saying they favor ending cannabis prohibition in a survey released in April.

Another poll released in May found that a majority of voters in the state also support decriminalizing all currently illicit drugs.

80 Top Law Enforcement Officials, Including A Biden Nominee, Urge SCOTUS To Hear Safe Injection Drug Case

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80 Top Law Enforcement Officials, Including A Biden Nominee, Urge SCOTUS To Hear Safe Injection Drug Case

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A coalition of 80 current and former prosecutors and law enforcement officials—including one who is President Joe Biden’s pick for U.S. attorney of Massachusetts—have filed a brief urging the Supreme Court to take up a case on the legality of establishing a safe injection facility where people can use illicit drugs in a medically supervised environment.

The nonprofit organization Safehouse was set to launch a safe consumption site in Philadelphia before being blocked by a legal challenge from the Trump administration, and it filed a petition with the nation’s highest court last month to hear the case. Now the group of law enforcement officials associated with Fair and Just Prosecution are calling on the Supreme Court to act in an amicus brief.

“Amici have an interest in this litigation because overdose prevention sites (OPSs) are among the harm reduction and public health interventions that have proven effective in preventing fatal overdoses and diverting people from unnecessary and counterproductive interactions with the justice system,” they wrote. “Amici, many of whom are currently or were previously responsible for enforcing the nation’s drug laws, also believe that the Controlled Substances Act cannot be construed to prohibit operation of a facility designed to address the most acute aspects of this public health emergency.”

If the court agrees to hear the dispute, advocates will be looking toward the Biden Justice Department and whether it will continue the federal government’s opposition to allowing supervised injection facilities. It would be a precedent-setting case that could steer policy for years to come, meaning Safehouse is taking a significant risk by pursuing the appeal of its loss in a lower court before the majority of conservative justices.

“Failing to address the loss of life resulting from drug overdoses—and criminalizing a community-based public health organization working to save lives—will further erode trust in the justice system,” the new brief states. “If there were ever a time to demonstrate that our government values the dignity of human life, that time is now.”

While President Joe Biden hasn’t weighed in directly on safe consumption sites, there’s been a theme within his administration of embracing the general concept of harm reduction for drugs. The White House Office of National Drug Control Policy (ONDCP), for example, said that “promoting harm-reduction efforts” is a first-year priority. In an overview of its objectives, the office said it intends to expand “access to evidence-based treatment,” enhance “evidence-based harm reduction efforts” and promote “access to recovery support services.”

These goals theoretically align with those of Safehouse, which wants to give people with substance use disorders a facility where medical professionals can intervene in the event of an overdose and provide people with the resources to seek recovery.

Among the signatories on the amicus brief are a former deputy assistant attorney general under Obama, district attorneys of Baltimore, Cook County, Dallas County, Los Angeles County, Manhattan, Philadelphia, San Francisco County and Seattle and the former attorneys general of Ohio, Vermont and Virginia.

But one signatory who especially stands out is Rachael Rollins, the district attorney of Suffolk County, Massachusetts who is Biden’s nominee for U.S. attorney of Massachusetts.

“As an elected prosecutor, I have a responsibility to protect every member of my community, which requires moving away from criminal justice responses to substance use disorder,” Rollins said in a press release. “Instead, we must embrace proven public health strategies as potential solutions. Lives depend on it.”

Philadelphia District Attorney Larry Krasner said the drug war “has taken too many lives already, and criminalization has only exacerbated this devastating toll.” He added: “We need a new way forward that allows communities to address the overdose crisis with harm reduction approaches proven to save lives and improve community safety.”

Fair and Justice Prosecution, the group that coordinated the amicus brief, also organized a tour of Portugal for 20 top prosecutors in 2019 so they could learn about the successful implementation of the country’s drug decriminalization law.

Safehouse won a battle in a federal district court in 2019 to proceed with the facilities. But in January, the U.S. Court of Appeals for the Third Circuit overturned the decision, ruling that permitting such facilities would violate a 1980s-era federal statute that bars organizations from running operations “for the purpose of unlawfully… using controlled substances.” That law was passed while Biden served in the Senate and helped push punitive drug policies that have had lasting consequences.

“As current and former criminal justice leaders, amici have seen first-hand how the classic ‘war on drugs’ approach to drug control—with its almost exclusive focus on aggressive criminal law enforcement—has exacerbated the overdose epidemic,” the pro-reform prosecutors and cops wrote in the new brief. “This experience confirms that no jurisdiction can arrest its way out of this public health problem. Fatal overdoses are a symptom of substance use disorder, a medical condition requiring a medical response.”

“Distorting federal drug laws to prohibit an [overdose prevention site] or to prosecute its sponsors would further undermine trust in the justice system and faith in the fair and sensible application of our drug laws. Interpreting federal criminal law to bar empirically validated harm reduction measures would make no one safer; it would only impede cooperation between law enforcement and the communities they serve.”

In its original petition to the Supreme Court in the current safe injection site case, Safehouse argued that the justices should “grant review to determine whether” federal statute really does prohibit “non-commercial, non-profit social service agencies…from establishing an overdose-prevention site that includes medically supervised consumption.”

“This question is a matter of life or death for thousands of Philadelphians and many thousands more throughout the country,” it said. “Tragically, while respondents have been pursuing this declaratory judgment against Safehouse, more than 3,200 people died in Philadelphia of drug overdoses—many of which could have been prevented if medical care had been immediately available through supervised consumption services.”

Safehouse also pointed out that Xavier Bacerra, the Biden administration’s secretary of health and human services, was among eight top state law enforcement officials who filed an earlier amicus brief in support of the organization’s safe injection site plan when he served as California’s attorney general.

The organization put the gravity of the case in no uncertain terms, painting a picture of how its proposed facility can save lives.

“When breathing stops, even a brief delay while waiting for medical help to arrive may result in an otherwise preventable overdose death or irreversible injury,” the petition says. “As a result, every second counts when responding to an opioid overdose; as more time elapses, the greater the risk of serious injury and death. Ensuring proximity to medical care and opioid reversal agents like the drug Naloxone at the time of consumption is therefore a critical component of efforts to prevent fatal opioid overdose.”

“Intervention by this Court is warranted to make clear that the federal law does not criminalize this essential public health and medical intervention designed to save lives from preventable overdose death,” it continues.

Safehouse argued that the appeals court’s interpretation of the law “eviscerates the intended boundaries of the statute and would criminalize the operation of legitimate businesses, charities, families, and good Samaritans that serve and reside with those suffering from addiction.”

If the Supreme Court were to take up the case and rule in favor of Safehouse, it could embolden advocates and lawmakers across the country to pursue the harm reduction policy.

The governor of Rhode Island signed a bill in July to establish a safe consumption site pilot program where people could test and use currently illicit drugs in a medically supervised environment. It became the first state in the country to legalize the harm reduction centers. It’s not clear whether the Department of Justice will seek to intervene to prevent the opening of such facilities in that state.

Massachusetts lawmakers advanced similar legislation last year, but it was not ultimately enacted.

A similar harm reduction bill in California, sponsored by Sen. Scott Wiener (D), was approved in the state Senate in April, but further action has been delayed until 2022.

At the same time that Safehouse is turning to the Supreme Court, it also announced recently that it will be returning the the federal district court that gave it an initial 2019 victory in support of establishing a safe injection facility before it was overturned in the appeals court.

The organization is making the unique argument that the federal government’s decision to block it from providing the service violates religious freedom by subjecting participants “to criminal penalties for exercising their sincerely held religious beliefs that they have an obligation to do everything possible to preserve life and to provide shelter and care to the vulnerable, including those suffering from addiction.”

In 2018, a congressional subcommittee approved legislation to specifically prohibit Washington D.C. from using local tax dollars to help open safe consumption facilities. But that provision was not enacted and has not been reintroduced since.

A 2020 study found that people “who reported using supervised injection facilities on an at least weekly basis had a reduced risk of dying compared to those who reported less than weekly or no use of this health service.”

Read the amicus brief from the prosecutors on the Safehouse safe injection site case below: 

Safehouse Amicus Sept 2021 by Marijuana Moment

Former GOP Congressman Who Actually Supported Marijuana Reform Enters The Cannabis Industry

Photo courtesy of Jernej Furman.

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.
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Former GOP Congressman Who Actually Supported Marijuana Reform Enters The Cannabis Industry

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Lately it’s come to seem as if most of the former politicians who’ve entered the marijuana industry were unhelpful or downright hostile to legalization when they were in office. But on Friday, a cannabis company announced an addition to its board who disrupts that narrative: a former Republican congressman who has a consistent legislative record of cosponsoring and voting for marijuana reform measures.

The multi-state cannabis businesses Red White & Bloom Brands Inc. (RWB) is bringing on former Rep. Ryan Costello (R-PA) to help it navigate the complicated regulatory space, drawing on his experience in Congress as the company works to expand.

Costello certainly isn’t the only Republican lawmaker who’s made the transition from Capitol Hill to the cannabis market. But he is a rare example of a politician who actually embraced enacting marijuana policy changes while he was in power before standing to profit from the industry. The congressman cosponsored a variety of bills—including ones to shield states that legalize cannabis from federal interference—and supported several reform amendments.

“I’m looking forward to utilizing my 15+ years of service in government, the legal profession, and my familiarity with cannabis policy to be a strategic resource for RWB as it positions itself as a true market leading house of brands in the permitted U.S. marketplace,” Costello said in a press release.

This breaks with a trend that has increasingly frustrated advocates, where it seems the people most inclined to benefit from legalization are those who stood in the way in Congress. The best-known example of that is former GOP House Speaker John Boehner (R-OH), who’s faced criticism from activists over his anti-legalization record while in office before joining the board of marijuana company Acreage Holdings.

While Costello left Congress in 2019 prior to the historic House vote on a standalone bill to federally deschedule cannabis, there are plenty of examples of him supporting more modest reform proposals during his congressional tenure.

He was a cosponsor of legislation to protect state marijuana markets from federal intervention, promote cannabis research, support military veterans’ access to medical marijuana, protect banks that service state-legal cannabis businesses and legalize industrial hemp.

The congressman also voted in favor of floor amendments to shield all state marijuana programs from Justice Department intervention, allow Department of Veterans Affairs doctors to recommend medical cannabis and end hemp prohibition.

In that respect, he was a rare GOP lawmaker. While the issue is increasingly bipartisan among the public, that hasn’t been reflected in Congress. And now Costello is in a position to leverage his legislative experience to advance a marijuana business’s interests.

It’s an exception to the trend.

For example, Tom Price, the former U.S. Department of Health and Human Services (HHS) head under President Donald Trump, is serving as a member of the board of directors for a medical marijuana business in Georgia after he refused to take action to reclassify cannabis under federal law when he had the power to do so. Price consistently voted against marijuana reform measures while serving in Congress.

Former Rep. Steve Buyer (R-IN), who also has a long track record of opposing marijuana legalization efforts, joined a Canadian cannabis company’s board in 2019.

Earlier this month, a New York-based lobbying firm that’s headed by a former Republican U.S. senator announced that it is launching a practice focused on serving cannabis businesses. That former senator, Alfonse D’Amato, racked up a record of supporting the war on drugs while in office.

There is at least one other former GOP congressman who entered the cannabis space with a legislative record supporting marijuana reform. Former Rep. Dana Rohrabacher (R-CA), who championed cannabis reform while in Congress, became an advisory board member for a marijuana company after being voted out of office in 2018.

Separately, President Joe Biden’s pick to head up federal drug policy worked for a major marijuana business last year, according to his financial disclosure reports.

California Activists Cleared To Collect Signatures For Psilocybin Legalization Ballot Initiative

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