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.
AOC Blasts Biden’s ‘Reagan-Era’ Marijuana Talking Points
Former Vice President Joe Biden’s suggestion that cannabis could be a gateway drug was “risky” and a “Reagan-era talking point,” Rep. Alexandria Ocasio-Cortez (D-NY) said in an interview with Marijuana Moment on Tuesday.
While the congresswoman said she acknowledged that “there are folks, when it comes to the marijuana issue, that have a wide range of opinions within the Democratic party,” she also feels that “we have moved on as a country” on the need to end cannabis prohibition.
“These are Reagan-era talking points that were behind one of the worst and most shameful phases of American policy, which is mass incarceration,” Ocasio-Cortez said, referencing the former Republican president’s anti-drug crusade that largely relied on fear-mongering and campaigns such as “Just Say No.”
“That rhetoric is rhetoric of mass incarceration. The only thing that marijuana, due to the failures of U.S. policy, is a gateway to is our mass incarceration system.”
“That needs to end, marijuana needs to be legalized, drugs need to be decriminalized for consumption,” she said. “These are very simple issues of public health.”
The congresswoman first voiced support for decriminalizing all drugs in a tweet on Sunday; she previously called for decriminalizing the consumption of psychedelics alone in a video taped for activists at a drug policy reform conference earlier this month.
Biden, who played a central role in enacting punitive drug laws during his time in the Senate, has been sharply rebuked by reform advocates after he said on Saturday that “there’s not nearly been enough evidence that has been acquired as to whether or not [cannabis] is a gateway drug” and that he wanted to see more debate on the issue “before I legalize it nationally.”
Sens. Bernie Sanders (I-VT) and Kamala Harris (D-CA), both presidential candidates, also seemed to criticize Biden, implicitly contrasting his comments with their respective plans to end federal marijuana prohibition. Entrepreneur Andrew Yang told CNN that he thinks “Joe actually will end up evolving on this issue over time if he sees the same evidence that I have.”
Ocasio-Cortez, in the new interview with Marijuana Moment, said she feels as if “any person who has had, like me, family, friends, neighbors that have been stopped, frisked, incarcerated and trapped in this system would know how risky of a statement that is,” referring to Biden’s “gateway drug” comments.
She also weighed in on the debate over what kind of marijuana reform legislation should be pursued in Congress, as the House Judiciary Committee prepares to mark up legislation from Chairman Jerrold Nadler (D-NY) that would federally deschedule cannabis and address social equity issues.
While some have voiced concerns that pursuing a wide-ranging legalization bill—as opposed to something more narrowly tailored and states’ rights-focused—will slow down the reform process given the current makeup of the Senate, the congresswoman said that with “matters of justice, it’s not about slowing it down, it’s about doing it right.”
“The problem is that if we don’t pass a bill with the social elements inside it then we compound on the racial wealth gap, we compound on the same folks who got rich off of private prisons are going to turn around, invest those profits into legal marijuana and we’re going to have the same economic discrimination that we had,” she said.
“If we just pass the financial piece, it’s just going to be another Wall Street market that’s going to exploit people so we can’t go down that road,” she added, referencing a House-passed bill that would protect banks that service marijuana businesses from being penalized by federal regulators.
Aaron Houston contributed reporting for this story from Washington, D.C.
Virginia Marijuana Decriminalization Bill Filed For 2020 After Democrats Reclaim Legislature
A Virginia lawmaker prefiled a bill on Monday for the 2020 session that would decriminalize the possession of marijuana—a piece of reform legislation that stands a much better chance of passing after voters elected Democratic majorities in both chambers of the legislature earlier this month.
Sen. Adam Ebbin (D) introduced the proposal, which would make possession of up to one ounce of cannabis punishable by a maximum $50 civil penalty. Currently, simple possession carries up to a $500 fine and 30 days in jail.
Decriminalization was among the campaign promises made by Gov. Ralph Northam (D), who also called for the policy change in his State of the State address in January, but reform efforts have stalled to date in the Republican-controlled legislature.
The governor said earlier this month that decriminalization is a 2020priority for his administration, a goal that now appears much more achievable since Democrats have reclaimed control of both the House of Delegates and Senate.
“The new majority creates a real pathway for the passage of decriminalization in the 2020 General Assembly,” Jenn Michelle Pedini, executive director of Virginia NORML, told Marijuana Moment. “SB2 is a common sense approach to a policy supported by three out of four Virginians.”
Here’s how the bill would amend the state’s law on cannabis possession:
“Any person who violates this section is
guilty of a misdemeanor and shall be confined in jail not more than 30 days and fined not subject to a civil penalty of no more than $500, either or both; any person, upon a second or subsequent conviction of a violation of this section, is guilty of a Class 1 misdemeanor $50. Any civil penalties collected pursuant to this section shall be deposited into the Drug Offender Assessment and Treatment Fund.”
Additionally, the legislation would make it so that only individuals who’ve committed criminal violations, or juveniles who’ve committed civil violations, would be subject to penalties such as a suspended sentence, substance abuse screening or driver’s license suspension.
“The bill also allows a person to petition for expungement of convictions and deferred disposition dismissals for marijuana possession when all court costs and fines and orders of restitution have been paid,” a summary states.
While it’s yet to be seen whether the new legislature will pursue broader reform such as adult-use legalization or an expansion of the state’s limited medical cannabis program, recent polling indicates that Virginians are ready to move ahead. Sixty-one percent of Virginia residents favor recreational legalization, according to a survey released in September.
Marijuana Legalization Will Get A Floor Vote This Congress, Key Chairman Predicts
The chairman of the House Judiciary Committee said on Tuesday that he’s optimistic about the prospects for getting his comprehensive marijuana legalization bill out of committee and onto the floor by the end of this Congress.
During a press conference with lawmakers and advocates, Chairman Jerrold Nadler (D-NY) also told Marijuana Moment that part of the reason he expects floor time is because he’s actively communicating with other committee chairs, requesting that they waive jurisdiction of the reform legislation to expedite its progress.
The Marijuana Opportunity Reinvestment and Expungement (MORE) Act, introduced by Nadler, would federally deschedule cannabis and provide for expungements and reinvestments in communities most impacted by the war on drugs. The panel confirmed that members will mark up the legislation on Wednesday at 10:00 AM ET.
The chairman—as well as Reps. Barbara Lee (D-CA), Earl Blumenauer (D-OR), Nydia Velázquez (D-NY), Steve Cohen (D-TN), Pramila Jayapal (D-WA) and the executive directors of the Drug Policy Alliance (DPA) and Law Enforcement Action Partnership (LEAP)—spoke at the event.
Watch lawmakers discuss the federal marijuana legalization vote below:
While the MORE Act has been referred to seven additional committees, Nadler told Marijuana Moment that his panel is “carrying on conversations” about getting other panels to waive jurisdiction.
“I don’t anticipate that to be a big problem,” he said. “We are looking forward to moving this to the floor at an appropriate time when we’ve done some more educational work and have the votes.”
“For too long, our federal cannabis policies have been rooted in the past,” Lee, who serves as co-chair of the Congressional Cannabis Caucus, said, adding that this bill is “rooted in equality, justice and fairness.”
For too long, our federal cannabis policies have been rooted in the past! Proud to work with @RepJerryNadler on the MORE Act, which decriminalizes marijuana at the federal level, enacts restorative justice, and makes the cannabis industry more diverse and equitable. #WeWantMORE pic.twitter.com/w3narSOOP8
— Rep. Barbara Lee (@RepBarbaraLee) November 19, 2019
Blumenauer said that the country has “seen more progress is the last 40 months than we’ve seen in the last 40 years” when it comes to marijuana policy.
“We shouldn’t settle any longer for incremental change,” he said. “We must commit to the restorative justice that’s in this.”
“This is the Congress that can end the failed prohibition of cannabis.”
Nadler said that he expects the bill to clear his panel with bipartisan support, predicting that more Republican members will sign onto the legislation as it advances.
To that end, Rep. Matt Gaetz (R-FL), who is so far the lone GOP cosponsor of the MORE Act, told Marijuana Moment that he’s “pleased to see historic steps being taken in the Judiciary Committee on the issue of cannabis.”
“The MORE Act is not perfect, but it advances the discussion on cannabis reform and allows the Congress to take much-needed action on this important issue,” the congressman, who is a member of the Judiciary Committee, said. “I look forward to participating in the discussion this week.”
Nadler left open the possibility that lawmakers could make compromises on the legislation later down the road, but he added that he doesn’t believe it will have to come to that, and that it would be a mistake to scale down the legislation at this early stage of the process.
“This will remove a stain on people’s record but really a stain on the United States of America,” Cohen said. He also joked that when Blumenauer described the bill as the “best piece of cannabis legislation” he’s seen, another way of putting it is that the MORE Act is the “Acapulco Gold of marijuana legislation,” referencing a variety of cannabis popular in the 1960s.
— NORML (@NORML) November 19, 2019
Maria McFarland Sánchez-Moreno, executive director of DPA, said that “marijuana prohibition has, for millions of black and brown people in the U.S., been the gateway to arrests, incarceration, loss of livelihoods and lives.”
“Those are concrete, real harms, that affect real people every day,” she said. “Continuing the status quo of prohibition is not just inaction: it means turning your back on those harms, and condemning hundreds of thousands every year to continuing that misery and oppression.”
“What is most important here [is] this will free up law enforcement resources to a great level,” Neill Franklin of LEAP said. “I hope that others realize what this will do for public safety coast-to-coast in this country.”
Rep. Lou Correa (D-CA) tweeted support for the MORE Act during the press conference and said that “[a]s more states fully legalize cannabis, it’s time for Congress to decriminalize it.”
As more states fully legalize cannabis, it’s time for Congress to decriminalize it. The MORE Act will:
✅ Deschedule cannabis
✅ Expunge low-level offenses
✅ Create 5% federal tax on cannabis
I’m proud to be a co-sponsor of this bill. It’s time to move forward. https://t.co/85cnQUuwJF
— Rep. Lou Correa (@RepLouCorrea) November 19, 2019
There’s been significant pressure from reform advocates to advance the legislation, especially since the full House overwhelmingly approved a bill that would protect banks servicing marijuana businesses from being penalized by federal regulators.
Several reform groups, including the ACLU, wrote a letter to House leadership ahead of that vote asking for a delay, arguing that Congress must pass comprehensive legalization that addresses social equity concerns before moving ahead with legislation viewed as largely favorable to the industry.
Historic vote planned in @HouseJudiciary. The MORE Act would deschedule marijuana & provide restorative justice to those hurt by the failed War on Drugs.
— Progressive Caucus (@USProgressives) November 19, 2019
Meanwhile, some feel that the House would be better off voting on a more limited, states’ rights-focused reform bill such as the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, which would simply carve out an exception in federal law allowing states to implement cannabis programs, because they believe it stands a better chance at passing in the GOP-controlled Senate.
While observers generally expect the MORE Act to pass out of committee as well as the House, there are still questions about what kind of amendments members might offer and how that will impact the vote.
#WA voters recognized the harm of the war on drugs in 2012 when they voted to legalize cannabis. Now, I’m proud to support the MORE Act, so we can give back to minority communities adversely impacted by this futile crackdown. https://t.co/UyIdgvUMDB
— Rep. Pramila Jayapal (@RepJayapal) November 19, 2019
In any case, Wednesday’s vote will be one of the most highly anticipated congressional developments in the cannabis reform movement, with members not just debating the end of federal prohibition—which happened in a House subcommittee in July—but actually voting on a bill that would accomplish that, and more.
Aaron Houston contributed reporting for this story from Washington, D.C. This post was updated to include remarks from the press conference.
Image element courtesy of Tim Evanson.