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.
The White House Is Reviewing CBD And Marijuana Research Guidance From FDA
The White House is currently reviewing a federal plan for marijuana and CBD research.
The Food and Drug Administration (FDA) submitted draft guidance on the issue last week to the White House Office of Management and Budget (OMB).
Details about the document—titled “Cannabis and Cannabis-Derived Compounds: Quality Considerations for Clinical Research”—are sparse. But an FDA spokesperson indicated to Marijuana Moment that it’s related to the agency’s ongoing work to develop broader CBD regulations that could eventually allow for the marketing of cannabis products as dietary supplements or food items.
“We recognize that there is substantial public interest in marketing and accessing CBD for a variety of products. We are working toward a goal of providing additional guidance, and have made substantial progress,” FDA said in a statement. “There are many questions to explore regarding the science, safety, effectiveness and quality of products containing CBD, and we need to do our due diligence.”
“As part of our work, the FDA continues to explore potential pathways for various types of CBD products to be lawfully marketed,” the statement continues. “An important component of this work is obtaining and evaluating information to address outstanding questions related to the safety of CBD products that will inform our consideration of potential regulatory frameworks for CBD while maintaining the FDA’s rigorous public health standards.”
What remains to be seen is whether FDA plans to wait for this specific guidance to be finalized and for the resulting research to be completed before it gets around to issuing final rules for CBD products in general. Stakeholders have been eagerly awaiting those regulations so they can fully take advantage of the legalization of hemp and its derivatives.
“We will continue to update the public about our path forward as our work progresses, and provide information that is based on sound science and data,” FDA said.
While sending the guidance to OMB could be interpreted as a positive development signaling that FDA is making progress on the development of regulations, former FDA Commissioner Scott Gottlieb said on Saturday that White House policies requiring OMB to review scientific documents in the first place represent an onerous step that’s delayed the issuance of guidance.
It’s also worth noting FDA’s effort to modernize definition of “healthy” on food labels to help consumers make more informed choices about diets has been under OMB review since August 2019. Will technical and scientific guidance critical to advancing patient care move faster? 2/2
— Scott Gottlieb, MD (@ScottGottliebMD) May 30, 2020
The FDA spokesperson declined to comment on the former commissioner’s statement.
The agency first announced in January that it planned to publish guidance on cannabis research this year. It’s not clear how long the OMB review will take or when the document will be finalized for public release.
In addition to sending the guidance to the White House for review, FDA is also soliciting public input about the safety and efficacy of CBD in comment period it has decided to keep open indefinitely. The agency said in an update to Congress in March that it has several specific questions it wants answered before deciding whether the cannabidiol can be lawfully marketed. That includes questions about the impact of different methods of consumption and drug interactions.
In the meantime, FDA is maintaining enforcement discretion when it comes to action against companies that sell CBD products regardless of the lack of regulations and has said it is currently targeting sellers that make especially outlandish or unsanctioned claims about the therapeutic value of their products.
It sent a warning letter to a CBD company owned by a former NFL player after advertisements it displayed suggested its products could treat and prevent a coronavirus infection, for example.
FDA sent a letter warning to a company about its marketing of injectable CBD products that led to a voluntary recall last month.
The agency also publicized a voluntary recall of another CBD product from a different company, notifying consumers about potentially high levels of lead in a batch of tinctures.
FDA has previously issued warnings to other CBD companies that have made unsubstantiated claims about the therapeutic potential of their products.
Photo by Kimzy Nanney.
Marijuana Legalization And The Fight For Racial Justice (Op-Ed)
“Black and brown lives matter and we owe it to our country and to ourselves to take tangible steps toward dismantling many of the power structures that perpetuate injustice. Marijuana prohibition is simply one of them.”
By Erik Altieri, NORML
On May 25th, George Floyd was killed on camera by officers affiliated with the Minneapolis Police Department. As were many Americans, we were shocked and disheartened by this tragic and needless loss of life.
As the events of the past few days have unfolded, it is clear that America is in the midst of a long overdue reckoning with itself. Since 1619, when the first ships arrived on the coast of Virginia with enslaved Africans in chains, our country has long had to struggle to address the inequality and structural racism embedded within our public institutions—particularly within the criminal justice system.
From slavery and the Civil War, to the battles to end Jim Crow laws, to the marches for civil rights, to the protests against mass incarceration, to the Black Lives Matter movement, each generation of Americans has stepped up to take action to fight to end racial injustice.
As protests continue to take place across our nation, more Americans are beginning to publicly demand action from their local, state and federal leaders to end the policies and practices that promote, enable and drive systemic racial injustice. In these conversations about policy solutions, many will include in their demands an ending to the war on drugs—or, at a minimum, an ending to marijuana criminalization. But while ending cannabis prohibition is both important and necessary, we must also recognize that doing so is but a single piece of a much larger puzzle.
Will legalizing marijuana reform alone solve the problem of racial injustice? No.
Is ending cannabis prohibition going to fix all of America’s social ills? No.
After we legalize adult-cannabis use, will we see an end to discriminatory policing against communities of color and other marginalized groups? No.
Will end marijuana prohibition be a small step toward the greater goal of promoting justice? Without a doubt, yes.
And the majority of Americans agree.
Will marijuana reform end racism? No. Can it be a part of reforming a broken & racist system? Yes.
It is important for those of us not from marginalized communities to truly listen to those who are facing this oppression & support them in this struggle.https://t.co/9fesgBY7Pc
— NORML (@NORML) June 2, 2020
Our decades-long prohibition of marijuana was founded upon racism and bigotry. Look no further than the sentiments of its architect, Harry J. Anslinger, Commissioner of the Federal Bureau of Narcotics, who declared: “[M]ost [marijuana consumers in the US] are Negroes, Hispanics, Filipinos and entertainers. … [M]arijuana causes white women to seek sexual relations with Negroes. … Reefer makes darkies think they’re as good as white men.”
These racial biases were later exploited by the Nixon administration when it ramped up the drug war in 1970 and declared cannabis to be “public enemy #1.” As former Nixon adviser John Ehrlichman later acknowledged: “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”
Today, the modern era of marijuana prohibition continues to be disproportionately applied. Annually, over 650,000 Americans are arrested for violating marijuana laws. Yet, according to an analysis of these arrests released earlier this year by the ACLU, “In every single state, Black people were more likely to be arrested for marijuana possession, and in some states, Black people were up to six, eight, or almost ten times more likely to be arrested. In 31 states, racial disparities were actually larger in 2018 than they were in 2010.”
Of course, marijuana prohibition isn’t the sole cause of America’s racial inequities, nor is it the sole reason why certain members of the police continue to engage in racially-aggressive policing and misconduct. But its criminalization is one of the tools commonly used to justify and perpetuate these injustices.
For example, marijuana enforcement was the pretext in the fatal law enforcement shooting of another Minnesotan just a few years before George Floyd’s murder: Philando Castile. The officer in this case alleged that he feared for his life simply because he believed that Mr. Castille had been smoking marijuana, stating: “I thought I was gonna die. And I thought if he’s, if he has the guts and the audacity to smoke marijuana in front of the 5-year-old girl and risk her lungs and risk her life by giving her secondhand smoke and the front seat passenger doing the same thing then what, what care does he give about me. And, I let off the rounds and then after the rounds were off, the little girl was screaming.”
Even in those jurisdictions where adult-use cannabis is legal, we know that there still remains much work to be done to address continuing racial inequities. For instance, African Americans and Latinos continue to disproportionately be targeted for traffic stops in Colorado and Washington even after legalization.
Then there is the question of the cannabis industry itself. We advocates need to continue to push for inclusion and equity within this space. We must not ignore the reality that while a handful of venture capitalists are now engaging in licensed cannabis sales in systems that largely exclude minority ownership while millions of others—most of them young, poor and people of color—continue to face arrest and incarceration for engaging in much of the same behavior.
There is no doubt that our national discussion over matters of race and policing will continue long after these public protests have ceased. NORML believes that calls for cannabis legalization need to be an important part of this emerging discussion—but only a part. Black and brown lives matter and we owe it to our country and to ourselves to take tangible steps toward dismantling many of the power structures that perpetuate injustice. Marijuana prohibition is simply one of them.
We are at a crossroads in this country and it is time for all of us to march as allies in the fight for racial justice and equality. It is important during this process for those of us not from these marginalized communities to truly listen to those who are facing this oppression and support them in this struggle. Let us take this moment in time to pledge to put in the work necessary in order to make America the better and more just nation that we know it can be.
Erik Altieri is executive director of NORML.
Two-Thirds Of Arizona Voters Support Marijuana Legalization Ballot Measure, Poll Shows
If Arizona marijuana activists succeed in placing a legalization initiative before voters this November, it will likely pass by a wide margin, according to a new poll.
In a survey of likely voters, about two-thirds (65.5 percent) of respondents said they would support the proposed measure, the Smart and Safe Arizona Act. That’s a notable shift since residents were surveyed late last year in a poll that showed 54 percent in favor of the policy change.
The survey described the legalization initiative, which would make it legal for adults 21 and older to purchase and possess cannabis and also impose taxes on legal sales, and asked 400 respondents if they would vote yes or no on the proposal
NEW POLL shows 65% of #Arizona voters are likely to vote Yes to legalize the sale, possession, and consumption of one ounce of #marijuana for adults at least 21 years old. READ MORE 👉🏼https://t.co/hTO0L60CRT pic.twitter.com/TygihYdxso
— HighGround, Inc. (@azhighground) June 1, 2020
Forty-seven percent said they would “definitely” back it and 18.5 percent said they “probably” would. Nineteen percent said they “definitely” would not vote for it, while six percent said they “probably” wouldn’t.
The campaign behind the initiative, Smart and Safe Arizona, said in April that it had collected enough raw signatures to qualify for the ballot. However, those haven’t been verified by the state yet and the group said it plans to continue petitioning to ensure success. Stacy Pearson, campaign manager for the organization, told Marijuana Moment on Tuesday that they’re “on track to turn in more than 400,000 signatures by the July 2 deadline.”
“The HighGround poll is encouraging and tracks with what our internal polling shows—Arizonans are ready to legalize marijuana,” she said. “Particularly in this economic environment, new jobs and tax revenue are important to voters.”
Activists asked the state Supreme Court to allow electronic signature gathering given challenges presented by the coronavirus pandemic, but that request was rejected.
In the poll, which was conducted from May 18-22, the only group that appears divided on the issue are those who identify as “very conservative.” They were evenly split—47.6-47.6 percent—on whether or not they’d vote in favor of legalization. All other demographics were solidly in favor of the proposal.
“As long as Smart and Safe Arizona can qualify for the ballot, all signs point to 2020 being the year that recreational marijuana finally becomes legal in Arizona,” Paul Bentz, senior vice president of research and strategy at HighGround, said in a press release. “Of course, there is still strong opposition among some of those who represent the most conservative segments of the electorate. We should expect a legal challenge coming from that audience because at this point, that’s the likely the only way they can defeat this issue.”
Under the measure, adults could possess up to an ounce of marijuana at a time and cultivate up to six plants for personal use.
The initiative also contains several restorative justice provisions such as allowing individuals with prior marijuana convictions to petition the courts for expungements and establishing a social equity ownership program
Cannabis sales would be taxed at 16 percent. Tax revenue would cover implementation costs and then would be divided among funds for community colleges, infrastructure, a justice reinvestment and public services such as police and firefighters.
The Department of Health Services would be responsible for regulating the program and issuing cannabis business licenses. It would also be tasked with deciding on whether to expand the program to allow for delivery services.
A 2016 legalization proposal was rejected by Arizona voters. But in the four years since, more states have opted to legalize and public opinion has continued to shift in favor of reform.
“Clearly, the initiative backers have learned from the mistakes of the past and have done everything they can to put together a more palatable proposal,” Bentz said. “In particular, they were wise to make this proposition more ‘family friendly’ by banning smoking in public and ensuring products cannot resemble children’s candy. Ultimately, that’s likely what got them over the hump with a majority of Republicans.”
Photo courtesy of Brian Shamblen.