The U.S. Department of Agriculture (USDA) released draft rules for hemp manufacturing on Tuesday and said it will soon begin accepting state regulatory plans for the newly legal crop.
The interim final rule on hemp will be formally published in the Federal Register on Thursday, with a 60-day public comment period to follow. Once the rules are finalized, USDA will begin to evaluate states’ and tribes’ submitted regulations plans, and any jurisdictions that do not send proposals will fall under the department’s general guidelines for producing the crop, which was federally legalized under the 2014 Farm Bill.
The regulations cover the requirements for where hemp can be grown, THC testing standards, the disposal process for crops that don’t meet federal standards and licensing protocols.
The regulation provides specific details on the process and criteria for USDA’s review of plans received from states and Indian tribes regarding the production of #hemp.
For more info and resources: https://t.co/E0qdkW3iY9 pic.twitter.com/7lMx3Ou484
— USDA Ag Mktg Service (@USDA_AMS) October 29, 2019
“At USDA, we are always excited when there are new economic opportunities for our farmers, and we hope the ability to grow hemp will pave the way for new products and markets,” USDA Secretary Sonny Perdue said in a press release.
At USDA, we are always excited when there are new economic opportunities for our farmers, and we hope the ability to grow hemp will pave the way for new products and markets. More on our new Domestic Hemp Production Program HERE: https://t.co/7Bz7zcGQmK pic.twitter.com/bkSLcM91mI
— Sec. Sonny Perdue (@SecretarySonny) October 29, 2019
“We have had teams operating with all hands-on-deck to develop a regulatory framework that meets Congressional intent while seeking to provide a fair, consistent, and science-based process for states, tribes, and individual producers who want to participate in this program,” he added.
After the regulations are finalized, USDA said it will make a determination about state or tribal plan applications within 60 days of their submission. Jurisdictions that submit applications to process hemp under USDA’s guidelines rather than their own local rules will be reviewed within 30 days of their submission. Prospective state or tribal applicants can obtain the necessary forms here.
The interim rule will sunset in two years, after which point USDA will issue final regulations.
Multiple lawmakers and industry stakeholders celebrated the announcement, emphasizing that federal guidelines will further empower hemp businesses to thrive.
Shawn Hauser, partner and chair of the hemp and cannabinoids practice group at Vicente Sederberg LLP, said that “there is an undeniable sense of progress that comes with reading federal regulations for hemp farming in the U.S.—something that was outlawed for decades, which so many people fought to achieve.”
But not all of the specific details are positive, she said.
“Many people will be disappointed to see such stringent enforcement provisions related to concerns about hemp exceeding legal THC limits. For example, the rules require disposal of ‘hot hemp’ by a federal agent, even if there are reasonable options to remediate it and avoid loss of a crop,” Hauser said, referring to plants that exceed legal THC limits. “These provisions feel like relics of prohibition and come at a risk and expense to farmers, but they do not come as a surprise. It takes time to transition from prohibition to a regulatory model.”
USDA is simultaneously issuing separate guidelines for sampling and testing procedures for hemp. Samples, which have to be collected about two weeks prior to a crop’s anticipated harvest date, must be tested at Drug Enforcement Administration (DEA)-registered laboratories.
📢📢 @SecretarySonny today announced the establishment of the U.S. Domestic Hemp Production Program. This program, as required by the 2018 #FarmBill, creates a consistent regulatory framework around #hemp production throughout the U.S. https://t.co/5edNG1FnZ3 pic.twitter.com/xgSff5uDJm
— Dept. of Agriculture (@USDA) October 29, 2019
Hemp is defined under the farm bill as having 0.3 percent THC on a dry weight basis. USDA clarified that testing protocol will involve an analysis of the total THC content, including THCA, which can be converted into the traditional psychoactive compound upon decarboxylation.
The plan also establishes “an acceptable hemp THC level” that accounts for uncertainty in the cultivation process.
“For example, if the reported delta-9 tetrahydrocannabinol content concentration level on a dry weight basis is 0.35% and the measurement of uncertainty is +/- 0.06%, the measured delta-9 tetrahydrocannabinol content concentration level on a dry weight basis for this sample ranges from 0.29% to 0.41%,” USDA explained. “Because 0.3% is within the distribution or range, the sample is within the acceptable hemp THC level for the purpose of plan compliance.”
If the THC content is found to be unacceptable, however, it must be destroyed by someone authorized under the Controlled Substances Act to handle marijuana, such as a DEA registrant. A USDA official confirmed on a press call Thursday that hemp that falls outside of the acceptable THC level will not be covered by federal crop insurance.
Another provision of concern for advocates is the implementation of a 10-year ban on participation in the hemp industry by individuals with prior felony drug convictions. USDA said that ban will only apply to “key participants” such as chief executives who have a direct financial interest in the business. That means personnel such as maintenance workers will be exempt from the ban, which is in line with the narrow interpretation that advocates pushed for.
The draft document does not address the rules around whether smokable hemp flowers may be sold, which is likely because such products would fall under separate jurisdiction of the Food and Drug Administration (FDA). That absence of rules doesn’t necessarily indicate that USDA is permitting smokable hemp but the lack of clarity on the issue for now leaves room for interpretation at the state level.
The public release of the proposed regulations comes days after the White House Office of Management and Budget (OMB) finalized its review of USDA’s interim final rule. Once the regulations are finalized, hemp farmers will be eligible for a series of federal agriculture programs, including crop insurance. Previously, USDA said farmers could only gain coverage under the 2014 version of the farm bill.
The department also clarified the rules on importing and exporting hemp seeds and plants this month—however, the interim rule states that it “does not affect the exportation of hemp” and notes that USDA will work with partners on an exportation plan if there’s sufficient interest. USDA also said in August that it would accept intellectual property applications for seed-propagated hemp.
Meanwhile, lawmakers are still pushing FDA to issue rules for CBD products, which most hemp businesses are using the crop for at this point. The agency said their rulemaking process is complicated by the fact that CBD exists as an FDA-approved drug and hasn’t been previously added to the food supply. Former Commissioner Scott Gottlieb said it may take years before regulations are issued unless Congress takes action.
Read the draft USDA hemp rules below:
This piece was updated to include information about USDA’s proposed regulations and to include comments from Hauser.
Photo courtesy of Pixabay.
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.