The U.S. Department of Agriculture (USDA) on Friday announced that it has finalized federal regulations for hemp. Industry stakeholders say they’re encouraged by improvements from initial interim rules but see room for additional changes, which they hope will come about under the incoming Biden administration.
This comes about two years after the crop was federally legalized through the 2018 Farm Bill, which required USDA to develop rules for an industrial hemp program. Since then, the department has released various proposals, solicited public input and included hemp in several government programs such as those allowing for crop insurance.
The new final rule is set to be published in the Federal Register on Tuesday and will take effect on March 22.
— USDA Ag Mktg Service (@USDA_AMS) January 15, 2021
“With the publication of this final rule, USDA brings to a close a full and transparent rule-making process that started with a hemp listening session in March 2019,” USDA Marketing and Regulatory Programs Under Secretary Greg Ibach said in a press release.
Early versions of the agency’s proposed regulations were met with mixed reviews from industry stakeholders. While many appreciated USDA’s efforts to stand up the market, there was widespread criticism from businesses and lawmakers over certain provisions viewed as excessively restrictive such as testing requirements and THC limits.
In response to that feedback, USDA made temporary revisions and reopened comment periods for additional input.
The final rule doesn’t include everything stakeholders sought, but there were some modifications made throughout the process. Here are some of the most notable provisions:
-Hemp processors will have some additional flexibility when it comes to THC negligence standards that would require disposal of the crop if exceeded. Hemp is defined under federal statute as containing no more than 0.3 percent THC, and now it can reach 1 percent, rather than 0.5 percent, without necessitating eradication.
-USDA maintained a requirement that hemp be tested only at labs certified by the Drug Enforcement Administration (DEA), but it is delaying enforcement of that rule until December 31, 2022.
-The window for required sampling of hemp plants was extended from 15 to 30 days, which businesses say will prevent backlogs in testing.
-The agency is still requiring pre-harvest samples to come from the cannabis flower rather than the whole plant, but it will allow those samples to be taken from five to eight inches from the stem.
-USDA is still mandating that hemp must be tested for total THC content, rather than delta-9 THC alone as stakeholders requested.
-A temporary revision to the agency’s disposal requirements that has allowed so-called “hot” hemp to be eradicated on-site has been made permanent.
-Instead of relying on strict federal sampling requirements, the rule provides for “performance-based” sampling.
USDA on Friday also released supplemental guidance materials on the rule’s sampling, testing and disposal components.
Stakeholders say that the latest rules represent an improvement from the prior version, but that some problems still remain.
“It does seem to be clear that it is a definite improvement over the interim final rule but that it is not perfect. It does not go as far as some of the key things we requested,” Jonathan Miller, general counsel for the U.S. Hemp Roundtable, told Marijuana Moment. “We’re pleased with the movement in the right direction, and we’re going to look forward to working with the Biden administration and [Agriculture Secretary-designate Tom Vilsack] to try to make this even better.”
Vilsack served as agriculture secretary under President Obama, and he helped manage the implementation of the 2014 hemp pilot program. He’s widely viewed as an advocate for the hemp industry.
Larry Farnsworth, a spokesperson for the National Industrial Hemp Council, said the organization is “pleased USDA has finally released their long-awaited rule on U.S. domestic hemp production and glad they listened to the concerns of the industry regarding sampling and testing.”
“We anticipate, as is customary of new administrations, that this rule will be one of many that will be frozen on the first day of the Biden Administration,” he told Marijuana Moment. “We look forward to working through these issues with the incoming Biden administration and have all of this year to get it right before the 2014 authorities sunset.”
Current Agriculture Secretary Sonny Perdue has said that the agency’s hands were tied in part due to statutory obligations, and he also noted pushback from DEA as they created regulations for the market.
“USDA staff have taken the information you have provided through three comment periods and from your experiences over a growing season to develop regulations that meet Congressional intent while providing a fair, consistent, science-based process for states, tribes and individual producers,” Ibach said. “USDA staff will continue to conduct education and outreach to help industry achieve compliance with the requirements.”
Even as the agency crafted its rules, it has spent past months reviewing and approving numerous state and tribal regulatory proposals—most recently for Rhode Island.
Under the U.S. Domestic Hemp Production Program, states and Indian tribes can submit hemp production plans for USDA approval or use @USDA's federal hemp production plan. Check info on your state or territory: https://t.co/DqaVyhok0D pic.twitter.com/32dqRu9X12
— USDA Ag Mktg Service (@USDA_AMS) January 15, 2021
“The transition from prohibition to a legal and regulated system takes time, and USDA’s final rule is a historic step forward for hemp in the U.S.,” Shawn Hauser of Vicente Sederberg LLP told Marijuana Moment. “Many are justifiably disappointed by the DEA’s continued (and in some ways expanded) role in the agricultural hemp program, but there were also a number of positive improvements.”
“We are undoubtedly making progress, and we will continue to work with regulators and through Congress to perfect the regulatory structure for hemp,” she said.
This story has been updated to include additional details about the new final rule and expert commentary.
Photo courtesy of Brendan Cleak.
Disagreements Threaten Virginia Marijuana Legalization Deal As Deadline Approaches
Conference committee members are divided over a proposed delay in regulatory decisions until next session, but have reportedly settled on delaying legalization of cannabis possession in any case.
By Ned Oliver, Virginia Mercury
With a Saturday deadline approaching, state lawmakers in the House and Senate are still working to resolve differences over landmark legislation that would legalize recreational marijuana in Virginia.
As of Thursday evening, it was unclear whether the two chambers would be able to reach an agreement on the bill, which Gov. Ralph Northam (D) has made a priority in his final year in office.
At least one lawmaker privately doubted the legislation would pass. Others, however, remained optimistic even as they acknowledged negotiations had grown tense, suggesting a vote was possible as early as Friday.
According to five sources familiar with the talks, the primary point of contention is language sought by the Senate that would delay decisions about how the new market is regulated until next year. Members of the chamber said during hearings last month they felt the legislation was too expansive and complex to complete work on during the 45-day session.
Lawmakers in the House have resisted, arguing the delay is unnecessary, citing in-depth studies conducted by legislative analysts and Northam’s administration. House lawmakers have also expressed discomfort about voting to legalize the drug without finalizing plans for a legal marketplace, according to the sources, who spoke on the condition of anonymity to discuss ongoing negotiations.
If a bill does emerge from the conference negotiations, it’s likely to disappoint civil rights advocates who have been pushing for an immediate end to criminal penalties related to the drug.
Both the House and Senate passed legalization bills that wouldn’t allow sales of recreational marijuana to begin until January 1, 2024—time both sides agree they need to set up a new cannabis authority to regulate the industry.
But they have differed over whether criminal penalties related to the drug should stay in place until legal sales begin. The House advanced legislation that wouldn’t end prohibition until 2024 while the Senate proposed legalizing possession of an ounce or less of marijuana beginning July 1 of this year.
The House, whose members worried that repealing criminal penalties before legal sales are permitted would encourage the black market, appear to have won the debate, with Senate negotiators agreeing to maintain existing criminal penalties until 2024, according to the sources.
The approach stands in contrast to a legalization bill signed by New Jersey’s governor on Monday, which immediately ended criminal penalties for possession of up to six ounces even though retail sales aren’t expected to begin until 2022 at the earliest.
Advocates had called the Senate’s position the minimum the legislature could do to address criminal penalties before the retail marketplace opens. Sen. Jennifer McClellan, D-Richmond, who proposed it, said it didn’t make sense to continue prosecuting people for something lawmakers had voted to legalize.
“We can’t risk more people being caught in the system for acting in ways that will soon be legal,” wrote a coalition of 25 advocacy organizations led by the ACLU of Virginia and the reform group Marijuana Justice.
Lawmakers skeptical of repealing criminal penalties before there are legal avenues to buy the drug have said they view the decriminalization legislation they passed last year, which reduced penalties for simple possession to a $25 civil fine, an adequate interim step.
Chelsea Higgs Wise, director of Marijuana Justice, countered that the approach unnecessarily allows the disproportionate enforcement of marijuana laws against Black Virginians to continue for three years. She said court data obtained by advocates shows that even with reduced fines, Black people are four times more likely than White people to face citations despite using the drug at the same rate.
“The commonwealth’s ‘decriminalization’ enforcement maintains Virginia’s racial disparities and goes against Governor Northam’s stated commitment to social equity, racial equity, and economic equity for marijuana legislation,” she wrote in a statement.
The two chambers are continuing to debate another focus for advocacy groups: how to treat people under 21 caught with the drug. As drafted, the Senate’s version would dramatically increase penalties for underage users caught with the drug, increasing the civil penalty for possession from $25 to $250 for people ages 18 to 20. Minors would face a $200 civil penalty for a first offense.
Valerie Slater, the director of RISE for Youth, which advocates for reforming the state’s juvenile justice system, said she favors the House’s approach, which would also increase penalties for underage possession, but only on subsequent offenses.
But she pointed to New Jersey’s new law as a better alternative, which calls for a written warning for a first offense, a call to parents for a second offense and referral to community services for a third offense. Members of the state’s Black Legislative Caucus opposed fines, worrying “police would continue to stop and fine minority youth more frequently than White people under 21,” according to The Star-Ledger.
“At no point should this be a crime for kids,” she said. “Can we just take New Jersey’s language and drop it into ours? It would be ideal.”
Kansas Governor’s Medical Marijuana Bill Introduced As Lawmakers Take Up Separate Legalization Proposal
A bill championed by the governor of Kansas to legalize medical marijuana and use the resulting revenue to expand healthcare was officially introduced on Wednesday. The move comes as lawmakers held back-to-back hearings on separate reform legislation this week.
Gov. Laura Kelly (D) has pushed for legalizing medical cannabis and using that revenue to support Medicaid expansion, and now Rep. Brandon Woodard (D) has filed a measure to do just that. He introduced it in the House Federal & State Affairs Committee, where members heard testimony on the separate legalization bill on Wednesday and Thursday.
“By combining broadly popular, commonsense medical marijuana policy that will generate significant revenue with Medicaid expansion, all logical opposition to expansion is eliminated,” Kelly said at a press briefing on Wednesday. “This bill just makes sense.”
Watch the governor discuss the medical cannabis and Medicare expansion bill, starting around 6:16 in the video below:
“In the face of the worst public health crisis our country has seen in a century, I’m even more committed to delivering healthcare and jobs and support for our hospitals through Medicaid expansion,” she said. “I urge the legislature to take Representative Woodard’s proposal seriously and to also consider the implications if they should fail to pass expansion yet again.”
Under Woodard’s bill, a draft version of which was shared with Marijuana Moment, there would be 21 medical conditions that qualify patients for cannabis—including cancer, multiple sclerosis, post-traumatic stress disorder and chronic or intractable pain—and regulators would be able to add additional conditions later.
— Brandon Woodard (@Woodard4Kansas) February 24, 2021
The secretary of the Kansas Department of Health and Environment would be responsible for developing regulations for the program by July 1, 2023. That includes setting a standard for a 90-day supply of cannabis that a registered patient could possess. It would then be tasked with issuing patient and caregiver registrations and identification cards.
The director of Alcoholic Beverage Control would have its own role in the program, issuing licenses for marijuana “cultivators, laboratories, processors, distributors and retail dispensaries.”
“For too long, the Kansas Legislature has ducked the topic of legalizing medical cannabis. An overwhelming, bipartisan majority of Kansans support medical marijuana, as well as Medicaid expansion,” Woodard told Marijuana Moment. “It’s time to expand healthcare coverage to more than 100,000 Kansans, while giving Kansans the opportunity to use a legal, compassionate therapy to treat a variety of conditions.”
“Whether Kansas chooses the path of legalization of medical, recreational, or something in between, I’m glad that the conversation is finally happening and the people of Kansas are watching,” he said.
While the representative’s bill would make it so Kansas would join the vast majority of states that have legal medical marijuana markets, it is restrictive as far as advocates are concerned. It would, for example, prohibit smoking or vaping cannabis. And it sets a 35 percent THC limit for marijuana flower. Home cultivation by patients would not be allowed.
Marijuana Moment is already tracking more than 700 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.
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The governor first announced a plan at the beginning of the month to enact medical marijuana legalization and use cannabis tax revenue to fund Medicaid expansion. And she said more recently that she wants voters to put pressure on their representatives to get the reform passed.
The Federal & State Affairs panel started debate this week on a separate medical marijuana legalization bill that’s been introduced this session, sponsored by the committee itself. Supporters and opponents of the reform testified on the proposal on Wednesday and Thursday, and advocates anticipate it will get a vote in the next 10 days before heading to the floor.
The first hearing consisted of those who favor the policy change, including a veteran, health care worker and former state lawmaker. The second involved testimony from neutral or opposing parties.
Former state Rep. Willie Dove (R) urged the committee not to “take this for granted.”
“We’re not talking about hippies from the 60s. You’re talking about individuals, law-abiding citizens, that really want to make something happened for their families,” he said. “And I would like to say that the revenue generated from this will be greatly appreciated in Kansas because it does help our bottom line.”
Like the Kelly bill, the committee-sponsored legislation lists 21 conditions that would qualify patients for the program, including chronic pain, HIV and post-traumatic stress disorder. Smoking and vaping products would be prohibited, however. It would also not provide for home growing.
“Veterans of all ages and ideologies are in favor of medical cannabis more than any other demographic,” George Hanna, codirector of Kansas NORML and a veteran, said. “Every veteran’s organization, representing every generation and political perspective, has overwhelmingly come out in support of safe access. I personally have had several physicians, within the VA itself, privately support medical cannabis.”
The opposing testimony on Thursday touched on a variety of talking points—that the scope of the qualifying conditions for medical marijuana is too large, legalization would increase youth access to cannabis, THC concentration levels are too high and ingestion by pregnant women or adolescents is dangerous.
But industry stakeholders with the Kansas Cannabis Business Association (KCBA) told Marijuana Moment that the testimony, particularly from law enforcement representatives, was notably “negligent and dispassionate, with most of their concerns rebutted by [Chairman John Barker (R)] on the spot.”
“Essentially the message was, ‘if 30 other states have found solutions to those problems, you can too,” KCBA’s Erin Montroy said.
A separate medical cannabis legalization bill was introduced by the Senate Commerce Commerce this month, though it has not seen action.
The measure’s language largely reflects legislation that was introduced in the House last year. Patients would be eligible for medical cannabis with a doctor’s recommendation if they have a condition that significantly inhibits their ability to conduct daily activities or if the lack of treatment would pose serious physical or mental harm.
Registered patients would be allowed to grow and possess at least four ounces of marijuana. The bill would also establish a Kansas Medical Cannabis Agency to oversee the program.
Read the draft text of Woodard’s medical cannabis legalization bill that he’s carrying for the governor below:
Montana Lawmakers Weigh Bill To Limit Marijuana Businesses
The committee also considered legislation on employment protections for medical cannabis patients.
By Keila Szpaller, The Daily Montanan
Glenn Broughton grew his medical marijuana business from a small storage shed to an operation that employees nearly 30 people, and if he’s shut down, he said he’ll go bankrupt.
“I’ve never been so scared in my life of what is going to happen to me at a pen-stroke,” said Broughton, who operates in Missoula, Lolo and St. Regis.
The business owner testified Wednesday before the House Business and Labor Committee against House Bill 568. The bill would allow roughly 115 marijuana dispensaries in the state—or not more than one per 10,000 people in a county, but 10 maximum—compared to the 355 medical dispensaries that are currently open.
No members of the public spoke in favor of the legislation.
In November, voters passed an initiative that legalizes recreational marijuana by 57 percent, and the Montana Department of Revenue anticipates accepting license applications in October.
Sponsored by Rep. Lola Sheldon-Galloway, R-Great Falls, the bill would limit dispensaries to be no closer than 1,000 feet from a school, daycare, place of worship, park or playground. It also would limit dispensaries to one per 10,000 residents in a county or up to 10 dispensaries maximum in one county.
“The people of Montana have asked us to have recreational marijuana in our state,” Sheldon-Galloway said. “My bill is just asking for some sideboards.”
Opponents, though, argued the sideboards would “squash the little guy” and favor massive operations flush with cash over smaller homegrown businesses. They also said the prohibitions go too far to realistically implement.
Sam Belanger, who said he read Montana’s marijuana legalization bill from cover to cover, told the committee he didn’t think the location restriction of 1,000 feet as the crow flies—rather than 500 feet and on the same street—would work in cities and towns.
“It eliminates almost all viable options for any dispensary in the state inside municipalities,” said Belanger, of Ronan.
Kate Cholewa, a cannabis advocate who has worked on related legislation in Montana, said the math simply doesn’t pencil out. When medical users were “tethered,” or tied to a specific provider, she said a business with 200 customers could make a good living.
With proposed limits, providers would have six times those customers. She also wondered who would be deciding who gets the the small number of licenses that would be available if the bill is enacted.
“This is just an invitation to problems and corruption,” Cholewa said.
Pepper Petersen, president of the Montana Cannabis Guild, said one of the reasons he helped draft Initiative-190, the legalization bill, is that recreational marijuana can generate tax revenue for the state.
“Most of that coal economy is gone. We need a replacement for that money,” Petersen said.
He estimated the revenue for state coffers could hit nearly $100 million a year for both recreational and medical marijuana. A study from the Bureau of Business and Economic Research at the University of Montana estimated a 20 percent tax on recreational marijuana could result in $43.4 million to $52.0 million a year from 2022 to 2026.
As part of her argument in favor of the bill, Rep. Sheldon-Galloway pointed to the relatively high use of marijuana among Great Falls middle and high school students compared to the state average. In Alaska, she said school suspensions for marijuana increased 141 percent after legalization.
Chuck Holman, though, said Montanans don’t want more regulations, and Cascade County needs to deal with its own problems.
“That county needs to address it themselves,” Holman said.
Wednesday, the committee heard a separate bill related to medical marijuana, House Bill 582.
Sponsor Rep. Robert Farris-Olsen, D-Helena, said he brought the bill forward because one of his constituents told him she lost her job because of her use of medical marijuana for a debilitating condition.
He said the bill wouldn’t allow the use of medical marijuana on the job, but it would prevent an employer from barring a person from using medical marijuana off the job for a medical condition.
Several opponents argued the bill wouldn’t make sense for industries where employees operate heavy equipment or must have a CDL, a commercial driver’s license. Jason Todhunter, with the Montana Logging Association, said logging is a highly hazardous industry, and some employers choose to conduct drug testing.
“This would muddy the waters on what we could check for,” Todhunter said.
The committee did not take action on either bill on Wednesday.