The deadline to submit comments to the U.S. Department of Agriculture (USDA) on proposed regulations for hemp was Wednesday—and advocates, stakeholders and lawmakers had a lot to say.
In the three months since USDA published an interim final rule for hemp, which was federally legalized under the 2018 Farm Bill, more than 4,600 individuals and organizations took the opportunity to weigh in, with many recommending certain revisions before rules for the crop are finalized.
On Wednesday alone, more than 1,000 comments were posted—a significant number considering that the public comment deadline was initially set for the end of last month until USDA extended it based on the volume of responses.
Here’s what lawmakers, stakeholders and advocates had to say about USDA’s proposed regulations:
While many celebrated the department’s commitment to quickly developing rules for the crop, there have been widespread, bipartisan concerns about select provisions that the industry and its supporters say could hamper its growth and create unnecessary burdens for farmers.
Several members of Congress, including entire congressional delegations representing Virginia, Maine, Colorado and Connecticut, have sent letters to USDA outlining requests for changes to the rules. Most inquiries identify the same specific concerns: 1) the negligence threshold for the allowable amount of THC is too low and doesn’t account for factors such as drought that can cause potency levels to spike, 2) the 15-day testing window before harvest is too short and 3) requiring testing to be conducted at Drug Enforcement Administration-licensed laboratories is onerous and will cause delays.
“Colorado continues to see tremendous growth in this industry and we are excited for the economic potential of this new crop,” the state’s congressional delegation wrote in a letter sent on Tuesday. “Therefore, it is critical the USDA establish a regulatory structure that allows our farmers to succeed.”
Colorado is a leader in every step of the hemp supply chain, maintaining a careful balance of regulatory oversight and economic support.
It is critical that the USDA establish a regulatory structure that allows our farmers to succeed. https://t.co/Isqausxc7l
— Rep. Joe Neguse (@RepJoeNeguse) January 30, 2020
“While the [interim final rule] begins to formulate a much needed regulatory structure, there are key provisions that are unnecessary, burdensome, and could hurt Colorado’s hemp industry,” they said.
The Connecticut congressional delegation made similar points in a letter sent to Agriculture Secretary Sonny Purdue on Wednesday.
As the @USDA continues to create a path forward for #hempfarming, I joined my colleagues from CT & @bryanhurlburt in sending a letter to @SecretarySonny advocating for a system that ensures farmers have the flexibility they need to enter the hemp industry. https://t.co/Pm7qUWa3Mq
— Rep. Joe Courtney (@RepJoeCourtney) January 30, 2020
“While [the proposed rules] help define the path forward for our farmers who wish to grow hemp, they contain a number of restrictive requirements that may prevent these very people from even taking advantage of the new agricultural opportunity,” the lawmakers said. “Our state’s hemp farmers want an opportunity to grow hemp, and have it treated the same as any other agricultural commodity. The rule as currently written assumes hemp is a controlled substance until it is proven otherwise.”
USDA also heard from Colorado Gov. Jared Polis (D) and the state’s attorney general and agriculture commissioner, who submitted comment on Wednesday identifying eight areas in the proposed rules that they argue need “modification.” Those areas include issues with regulations around sampling periods, lab certification requirements, THC thresholds and disposal protocol.
“As an early mover state in hemp, we understand the pivotal role a workable regulatory structure plays in allowing a new industry to flourish and we appreciate the hard work your staff has undertaken to construct a framework for states to operate their own hemp programs,” the letter, a hard copy of which was submitted on Colorado-grown hemp paper, states. “We understand that establishing a regulatory framework is a difficult task and we appreciate your willingness to consider the alternative approaches to regulating hemp as well as the legal issues set forth in this document.”
In a press release, Polis said “Colorado is the top state for hemp production, and we are proud of our work to increase good jobs and honored to help the Department of Agriculture figure out what we already know about hemp in Colorado.”
“We want to unleash this industry to grow and innovate. The proposed interim final rule, as currently written, does not support best practices in hemp production at a critical time in the development of this important industry,” he said. “The recommended changes we’ve put forward will support the hemp industry while establishing appropriate guidelines.”
The advocacy group Vote Hemp sent its comments on Wednesday, stating that it “believes the USDA has taken steps in the right direction in drafting the [interim final rule], however certain provisions do raise serious concerns for our stakeholders, hemp producers, processors and manufacturers.”
The negligence threshold, sampling protocol, testing and disposal requirements and laboratory restrictions were among the group’s chief concerns.
“We appreciate that the Agency also wants to get feedback after the 2020 growing season,” Vote Hemp said, adding that it recommends that USDA hold “another comment period in the 2nd half of 2021 and issue a final rule in the fall of 2021 after having more time to see how the new [interim final rule] has been working.”
“We sincerely appreciate your consideration of these comments and look forward to working with the Agency to ensure a strong and successful hemp industry,” the group said.
On Monday, Vermont’s agriculture department submitted comments to USDA, expressing similar concerns about the regulations.
Again, the top problems the state agency identified concern the THC threshold, sampling protocol and laboratory certification requirements.
“We believe our suggestions will improve the hemp program making it better for small growers while creating more opportunities for those making a living from hemp,” Vermont Agriculture Secretary Anson Tebbetts said in a press release. “I hope the USDA will consider providing States with the necessary flexibility to be able regulate hemp production while providing Vermont farmers with greater certainty and less risk.”
Michigan’s agriculture department said in comments submitted Wednesday that it “looks forward to working with USDA to develop and implement a strong industrial hemp program that’s compliant with the intent of the Hemp Farming Act of 2018 and is economically viable for Michigan hemp growers and processors.
The letter focused primarily on the THC threshold, with the department arguing that the “regulatory fear that hemp could potentially exceed a 0.3 percent concentration of THC and the unfair suspicion that it will be grown and used for illicit purposes must be balanced with the reality that all but three states have legalized Cannabis sativa L in at least some form or fashion.”
“Throughout North America, the combined legality of hemp at the federal level, and marijuana at the state level, has resulted in many positive outcomes including, but not limited to, new business opportunities, job creation, increased state sales tax revenue, and improved quality of life,” the letter states. “These positive outcomes far outweigh the perceived negative consequences of growing hemp that marginally exceeds 0.3 percent.”
The National Association of State Departments of Agriculture (NASDA) sent in its comments on Tuesday, reiterating that the proposed testing window is too short, the THC threshold is too low and the laboratory requirements are unnecessary, among other concerns.
“On behalf of NASDA state and territorial members, we are grateful for your dedicated work in establishing a federal program that facilitates the growth of a promising new industry while accommodating the diverse needs and challenges of farmers across our country,” the organization wrote. “Given their own diverse resources and challenges, our members will benefit from greater clarity from USDA in meeting the requirements of the 2018 Farm Bill. We ask that you incorporate these concerns, as well as the feedback from our individual members, as you advance a final rule.”
Outside of the practical, agriculture-specific provisions, others have raised questions about finance implications. The American Bankers Association (ABA) said in comments submitted Wednesday that it sees three possible problems with the interim final rule.
In a letter sent today to the @USDA, ABA recommended several changes to an interim final rule that would facilitate banks offering services to hemp growers and hemp-related businesses. Read the letter: https://t.co/ZhIiMGeK3U
— American Bankers Association (@ABABankers) January 29, 2020
Federal guidances stipulates that hemp businesses are entitled to financial services, but it requires them to be licensed—and currently, USDA’s rules only allow federal, state and local enforcement officials to access the licensing database, so ABA wants to expand access to banks. ABA also said licenses should be able to be automatically renewed to avoid uncertainty. Finally, it is seeking clarification on what happens to licenses when “unanticipated events, such as a death or illness, occur between planting and harvesting.”
“ABA appreciates the opportunity to comment on the USDA interim final rule on domestic hemp production. We believe that, with important changes to the rule, farmers will be encouraged to consider a crop which has a great deal of promise for a variety of uses, including clothing, construction, and as a replacement for plastics,” the letter concludes. “However, some of the practical limitations, as discussed above, must be addressed to ensure that risks are appropriately mitigated and that farmers and their lenders feel comfortable supporting this industry.”
Of course, these comments represent just a small fraction of the more than 4,600 that have been submitted. Many individuals engaged in the hemp industry also shared their thoughts and concerns, though many echoed the same points about excess restrictions and requirements.
“Enforcing these regulations will be impossible to uphold and will create an extra stress on farmers who already have so many variables to contend with in a new emerging industry,” one commenter wrote. “Free the industry, move out of the small farmers way. Stop favoring large corporate interest.”
Another person wrote that the “0.3 percent THC requirements are not founded in any science and just downright silly.”
“These strict requirements will do nothing but hurt the farmers as well as the end product that is produced,” they said. “I recommend at least a 1 percent THC threshold, which would allow farmers to focus on producing quality CBD biomass without the added worry of losing everything because of a meaningless percentage.”
A commenter based in Kentucky expressed frustration over the rule’s proposed 10-year ban on participation in the hemp industry by certain people with prior felony drug convictions.
“I believe that it is hypocritical, and cruel to restrict these persons from the hemp/cannabis industry,” the comment states. “We love our neighbors and family members—we need them to have every opportunity to get their lives back. Judicial consequences have failed tremendously in the war on drugs.”
It remains to be seen how much stock USDA will put into the public comments, but in any case, it’s clear that not only is interest in the regulations strong and widespread, but recommendations on changes are largely consistent.
This story has been updated to include comments from the Colorado congressional delegation.
Photo courtesy of Brendan Cleak.
American Medical Association Asks Mississippi Voters To Reject Medical Marijuana Ballot Initiative
A medical marijuana legalization initiative that will appear on Mississippi’s November ballot is being targeted by two medical associations that are pushing voters to reject the policy change.
With weeks left until the vote, the Mississippi State Medical Association (MSMA) and American Medical Association (AMA) are circulating a sample ballot that instructs voters on how to reject the activist-led measure. For supporters and opponents alike, the way the ballot is structured can be confusing—a product of the legislature approving an alternative that appears alongside Initiative 65.
“The purpose is to defeat Initiative 65. Initiative 65A will allow the legislature to enact changes to the law, which would not be possible with Initiative 65,” the opposition campaign document states. “MSMA is asking for you to join us in educating and encouraging our population to vote against Initiative 65.”
This marks the latest obstacle that reform advocates are facing as they work to inform the electorate about how to fill out the ballot to pass their proposal. Despite polls that show support for medical cannabis legalization at 81 percent in Mississippi, opponents aren’t acquiescing to public opinion.
MSMA President Mark Horne told WLBT-TV last week that the organization was asked to review the initiative and that “it was immediately clear that this is an effort focused on generating profits for an industry that has no ties to the medical or health care community in Mississippi.”
But according to Jamie Grantham, communications director for Mississippians for Compassionate Care (MCC), that talking point has only recently been aired and the campaign didn’t receive that feedback until MSMA mounted this opposition push. She told Marijuana Moment on Monday that the group’s steering committee is composed of several physicians who also had a hand in drafting the measure’s language—and that includes doctors who are part of MSMA.
“Ultimately, it boils down to patients being able to have access to this through their physician. They need to be able to have that conversation with them,” she said. “If certain physicians don’t see a benefit to that, that’s fine. But lots of other physicians do, and that’s evidenced undeniably in the 34 other states with medical marijuana programs where patients are receiving relief.”
AMA President Susan Bailey argued that “amending a state constitution to legalize an unproven drug is the wrong approach,” adding that there are concerns about youth exposure and impaired driving.
That said, a scientific journal published by AMA has printed research showing the advantages of broad marijuana legalization, however, with one recent study showing that people in states where recreational cannabis is legal were significantly less likely to experience vaping-related lung injuries than those in states where it is prohibited.
The organization has long maintained an opposition to legalization but has called for a review of marijuana’s restrictive federal Schedule I status.
Marijuana Moment reached out to AMA for comment, but a representative did not respond by the time of publication.
If the Mississippi campaign’s measure passes, it would allow patients with debilitating medical issues to legally obtain marijuana after getting a doctor’s recommendation. The proposal includes 22 qualifying conditions such as cancer, chronic pain and post-traumatic stress disorder, and patients would be allowed to possess up to 2.5 ounces of marijuana per 14-day period.
In June, lawmakers introduced yet another medical cannabis alternative resolution that would’ve posed an additional threat to the activist-driven reform initiative. But, to advocates’ relief, the legislation didn’t advance before lawmakers went home for the summer.
Nebraska Activists Unveil New Medical Marijuana Initiative For 2022 Following Supreme Court Defeat
Nebraska activists on Monday announced they are filing a new medical marijuana ballot initiative after an earlier version got shot down by the state Supreme Court this month.
The previous proposal had already collected enough signatures from voters and qualified for this November’s ballot, but a local sheriff filed a challenge, arguing that it violated the state’s single-subject rule that prohibits measures that deal with multiple issues. The secretary of state’s office rejected that claim, but the case went to court and a majority of justices ultimately ruled that the proposal would be removed from the ballot.
While advocates are disappointed that the state won’t have the opportunity to enact the policy change this year, Nebraskans for Medical Marijuana didn’t waste any time putting together a new initiative that they feel will pass the single-subject test and appear on the 2022 ballot.
Language of the new proposal simply states: “Persons in the State of Nebraska shall have the right to cannabis in all its forms for medical purposes.”
Of course, that simplified text might satisfy the ballot policy, but it leaves an open questions about what—if any—regulated market would provide people with access to cannabis. It also doesn’t define eligibility, so that right to marijuana would appear to be unrestricted as long as person purports to use it for therapeutic reasons.
Those questions, if they remain unanswered by the campaign, could prove to be a sticking point for voters who would otherwise support regulated access to medical cannabis but might be uncomfortable with what could be a “free-for-all” situation that opponents have locked activists into with the single-subject challenge.
That said, the advocacy group says it plans to follow up the new simple constitutional amendment with “trailing statutory initiatives to set up a safe and secure medical cannabis system in Nebraska” if lawmakers fail to pass any medical marijuana legislation over the next year. That’s similar to how casino gaming supporters are pursuing their issue with companion constitutional and statutory ballot measures.
Under this year’s blocked initiative, physicians would have been able to recommend cannabis to patients suffering from debilitating medical conditions, and those patients would then have been allowed to possess, purchase and “discreetly” cultivate marijuana for personal use.
Sens. Anna Wishart (D) and Adam Morfeld (D), cochairs of Nebraskans for Medical Marijuana, have tried for years to pass medical cannabis bills in the legislature only to be blocked by opposition from leadership.
Now, between the Supreme Court defeat and legislative inaction, they’re charting a new path.
“Families with loved ones suffering from conditions like epilepsy, PTSD, Parkinson’s, and cancer have fought for years to make medical cannabis safely accessible in our state as it is in 33 other states,” Wishart said in a press release. “This year over 190,000 Nebraskans successfully petitioned our government during a pandemic for that right, and despite receiving qualification from the Secretary of State, our initiative was removed from the ballot by a 5-2 vote from Nebraska’s Supreme Court. We will not give up and intend to bring this fight to the legislature in January with a bill that I will introduce and to the ballot in 2022.”
Morfeld added that the “new petition language indisputably presents a single subject and makes medical cannabis a constitutional right.”
“Then following with several statutory initiatives, we will establish a safe and regulated medical cannabis system,” he said. “Nebraskans have a constitutional right to petition their government, and we will not stop until they can exercise their right and have their voices heard on medical cannabis.”
— Senator Adam Morfeld (@Adam_Morfeld) September 28, 2020
While the timing isn’t ideal as far as advocates are concerned, given that presidential election years are typically targeted by cannabis reform supporters because of relatively larger turnout by supporters as compared to midterm cycles, 2022 is the next option they’re left with. That said, it’s possible that the continuing momentum for reform via the ballot could spur legislators to take up the issue in the meantime.
For what it’s worth, Nebraska’s attorney general said in an opinion last year that efforts to legalize medical marijuana in the state would be preempted by federal law and “would be, therefore, unconstitutional.”
Photo courtesy of Mike Latimer.
Top Illinois And Michigan Officials Give Marijuana Legalization Advice To Pennsylvania Lieutenant Governor
The lieutenant governors of Illinois and Michigan recently gave their counterpart in Pennsylvania some advice on how to approach marijuana legalization in his state.
At a virtual forum on Thursday, Pennsylvania Lt. Gov. John Fetterman (D) put several questions to Illinois Lt. Gov. Juliana Stratton (D) and Michigan Lt. Gov. Garlin Gilchrist (D), asking for tips on how to navigate the policy change as legislators in his state consider his push to enact a legal cannabis system.
“What I hope that Pennsylvania can learn from Michigan is that you can do it right. You do not have to piecemeal this together,” Gilchrist said.
— Lt. Gov. John Fetterman (@FettermanLt) September 23, 2020
“When you do it in the right way, it sets you up to create the systems and infrastructure to truly support people as this comes online, to create opportunities for those who have been oppressed and cut out of opportunity because they’ve been incarcerated or criminalized in the system to be able to participate in the potential prosperity that adult-use cannabis can create for communities in a full and robust and inclusive way,” he said.
Fetterman said that, from his perspective, Illinois is “the gold standard of legalizing recreational cannabis” because of how it intentionally approached restorative justice and social equity through reform legislation.
Because Pennsylvania doesn’t have a process through which citizens can put initiatives on the ballot, he said he was especially interested in how Illinois crafted an effective cannabis system legislatively.
“We had looked at other states and what was happening in other states, when we did our homework, we realized that really none of the other states had really kind of approached this legislation or their efforts—I think we were the first to do it by legislation—with an intentional lens of equity,” Stratton, who purchased cannabis gummies at a dispensary on the state’s first day of legal sales, said. “As all of us know, if you’re not intentional about equity, it just doesn’t happen because of the systems and the systemic racism that we’ve talked about. It does not happen that you just end up with equity.”
“We are working towards making sure that those individuals that were from many of the communities most harmed by the war on drugs could have real opportunity. We’re working towards that,” she said. “We are repairing the harm of what generations of bad policy—including, again, the war on drugs—has done to these communities that are disproportionately black and brown.”
Stratton also emphasized that, under her state’s marijuana model, 25 percent of cannabis tax revenue goes toward restorative justice grants for disadvantaged communities. She also noted that Illinois has been consistently “breaking records with sales,” even during the coronavirus pandemic. That said, there have been some snags in implementing an equitable model of cannabis business licensing in the state, with several lawsuits filed over the results of a recent application scoring round.
Gilchrist jumped in to offer Fetterman another tip as Pennsylvania navigates through legalization legislation.
“There’s another element that I want to discuss that that perhaps is something that you should think about in Pennsylvania, and that is that kind of—I won’t call it consensus building per se—but that kind of real and robust and muscular set of community conversations and involvement in the design of implementation is really important,” he said.
He said it’s important to ensure that there’s “accessibility” to enter the industry and remove barriers that keep people from participating.
“You don’t want people to be designed out of these opportunities,” he said. “And sometimes that can happen, both unintentionally and intentionally.”
Fetterman ended the event by reflecting on the increasing bipartisan support around legalization, and both of his guests agreed that their experiences demonstrated as much.
He and Gov. Tom Wolf (D) have been regularly talking about the policy change in recent weeks. At a marijuana reform rally earlier this month, for example, both officials discussed their support for legalization and the need to stand up Pennsylvania’s market as more surrounding states pursue legal cannabis models.
Also this month, Wolf took a shot at the GOP-controlled legislature for failing to get the job done. He also floated the idea of passing a bill that would allow the state itself to sell the cannabis to consumers.
While Wolf initially opposed adult-use legalization, he came out in support of the policy change last year after Fetterman led a statewide listening tour last year to solicit public input on the issue.
Shortly after the governor announced that he was embracing the reform, a lawmaker filed a bill to legalize marijuana through a state-run model.
A majority of Senate Democrats sent Wolf a letter in July arguing that legislators should pursue the policy change in order to generate revenue to make up for losses resulting from the COVID-19 pandemic.
Photo courtesy of WeedPornDaily.