The U.S. Department of Agriculture (USDA) said on Thursday that it will not be amending its proposed rules for hemp to increase the allowable THC limit, arguing that only Congress can change that specific policy.
The department is open to tweaking other aspects of hemp rules that stakeholders have complained about, however, and officials announced they will be opening a second public comment period following the 2020 harvest season to solicit more input on the current interim final rule before issuing final regulations.
Lawmakers and industry stakeholders have made numerous appeals to the department to change its regulations on how much THC is allowed to be present in the crop. As it stands, hemp is defined under the 2018 Farm Bill that legalized the crop as having no more than 0.3 percent THC, with a negligence threshold of 0.5 percent. Farmers whose plants test positive for having above that 0.5 percent limit three times in a 10-year window will be prohibited from cultivating it.
USDA officials acknowledged on a call with reporters that many have asked the department to increase the THC limit, but they said because it’s written into the Farm Bill, it’s a statutory—rather than regulatory—issue that only Congress can resolve.
“The Farm Bill set forth these requirements,” Bruce Summers, acting administrator of USDA’s Agriculture Marketing Service, said on the call. “Any changes to these requirements require legislative action.”
“To go from 0.3 to one percent would have to be a statutory change,” he said. “In other words, Congress would have to take action. We couldn’t do that by regulation.”
Summers admitted that THC levels can spike even if a farmer “does everything possible” to keep it below 0.5 percent. Environmental factors such as drought can result in higher THC concentrations. Still, hemp that exceeds that limit must be disposed of, and so-called “hot hemp” is ineligible for federal crop insurance programs, including two that USDA announced ahead of the call on Thursday.
Listen to the USDA hemp call below:
The department also won’t be changing provisions stipulating that total THC must be tested using post-decarboxylation methods—something stakeholders hoped would be amended but that USDA says is another statutory matter.
There are some regulations that USDA said it could potentially change before they issue a final rule, which will come after the second comment period. For example, the department has “regulatory flexibility” to extend the THC testing period, which is current set at 15 days prior to harvest. Farmers have indicated that that timeframe is too short, and it could cause unnecessary delays.
“There is room for discretion in the final rule,” Summers said. “We will review these 4,600 comments we’ve received so far. We’re going to take additional comments before we start drafting the final rule. And that’s something we certainly will look very closely and decide how to move forward on the final rule. But it absolutely is within our purview to exercise some discretion and you might see some changes in the final rule.”
Industry stakeholders have also expressed concerns about restrictive protocols about parts of the plant that can be sampled for testing. That’s another area where USDA said possible changes could come.
Additionally, Summers said the department is actively consulting with laboratories across the country to determine what their testing capacity is. In numerous public comments on the interim final rule, individuals said that the proposed requirement that all testing facilities be certified by the Drug Enforcement Administration will cause backlogs and delays. Changes to those regulations are also possible, he said.
Another rule that could be amended down the line concerns disposal practices for crops that fail potency testing. So-called “hot hemp” isn’t allowed to be marketed, and it does have to be disposed of. But Summers said “there’s probably some flexibility there and we hope to get some additional guidance on that out shortly.”
Photo courtesy of Brendan Cleak.
Vice President Pence Slams Marijuana Banking Provisions In Democrats’ COVID Bill
Vice President Mike Pence on Monday criticized the inclusion of marijuana banking language in the latest House-passed coronavirus relief bill.
During an interview with Fox Business’s “Lou Dobbs Tonight,” the vice president discussed GOP priorities for future COVID-19 legislation and said they were at odds with those of Democrats.
“In the House of Representatives, I heard the other day that the bill that they passed actually mentions marijuana more than it mentions jobs,” Pence, who consistently voted against cannabis amendments when he served in Congress, said. “The American people don’t want some pork barrel bill coming out of the Congress when we’ve got real needs from working families.”
This is one of the more high-profile examples of Republicans condemning the cannabis provisions, but it’s far from the only one. Just last week, Pence’s chief of staff, who previously served as director of legislative affairs for the White House, made similar remarks.
Senate Majority Leader Mitch McConnell (R-KY) has been one of the most vocal critics, though he’s largely focused on specific industry diversity reporting requirements of the Secure and Fair Enforcement (SAFE) Banking Act that were included in the COVID legislation along with the basic financial services provisions of the bill.
The SAFE Banking Act, which previously passed the House as a standalone bill, is primarily meant to protect financial institutions that service state-legal marijuana businesses from being penalized by federal regulators.
The prospects of getting the House version to the president’s desk seem dim, as negotiations between Speaker Nancy Pelosi (D-CA), Senate Minority Leader Chuck Schumer (D-NY) and Treasury Secretary Steven Mnuchin have stalled.
President Trump, meanwhile, has decided he’s not waiting for lawmakers to reach a deal and issued an executive order over the weekend that calls for new unemployment benefits, student loan payment deferrals and more.
Senate Minority Whip Dick Durbin (D-IL) said on Sunday that Democrats are “ready to meet the White House and Republicans halfway.” What remains to be seen, however, is whether “halfway” would involve cannabis banking protections.
Democrats have made the case that granting cannabis businesses access to the banking system would mitigate the spread of the virus by allowing customers to use electronic payments rather than exchange cash. They also say it could provide an infusion of dollars into the financial system that’s especially needed amid the economic downturn caused by the pandemic.
Rep. Tulsi Gabbard (D-HI) told Marijuana Moment in an interview last week that she agrees with her colleagues that the marijuana banking provision is relevant to COVID-19 bill.
“By continuing to disallow anyone associated with these industries that states have deemed legal is further perpetuating serious problems and uncertainty during a time when, frankly, we need as much certainty as we can get,” she said.
While the Senate did not include the banking language as part of their COVID-19 bill, there’s still the House-passed standalone legislation that could be acted upon.
The SAFE Banking Act has been sitting in the Senate Banking Committee for months as lawmakers negotiate over the finer points of the proposal.
Last month, a bipartisan coalition of state treasurers sent a letter to congressional leaders, asking that they include marijuana banking protections in the next piece of coronavirus relief legislation.
In May, a bipartisan coalition of 34 state attorneys general similarly wrote to Congress to urge the passage of COVD-19 legislation containing cannabis banking provisions.
Photo courtesy of Flickr/Gage Skidmore.
Arizona Marijuana Legalization Initiative Officially Qualifies For November Ballot
A measure to legalize marijuana in Arizona officially qualified for the November ballot on Monday.
The secretary of state announced that activists turned in enough valid petitions to make the cut one month after about 420,000 raw signatures were submitted.
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.
Secretary of State Katie Hobbs said that her office verified petitions submitted by the Smart and Safe Arizona campaign and determined that they turned in approximately 255,080 valid signatures. At least 237,645 were needed to qualify.
The measure will be designated on the ballot as Prop. 207.
The Secretary of State's Office has certified the signatures submitted by the Smart and Safe Arizona initiative. After review, the petition exceeded the minimum requirement with approximately 255,080 valid signatures and will be placed on the General Election ballot as Prop. 207. pic.twitter.com/E6nM4vkLgf
— Secretary Katie Hobbs (@SecretaryHobbs) August 11, 2020
It’s been a long road to the ballot for activists, who at one point asked the state Supreme Court to allow them to collect signatures electronically amid the coronavirus pandemic. That request was ultimately rejected.
Prohibitionists attempted to keep the measure off the ballot by filing a suit in state court, arguing that the official summary of the initiative was misleading because it omitted certain provisions. The court disagreed and rejected the suit last week, though it’s still possible the legalization opponents will appeal.
Arizona voters narrowly rejected a marijuana legalization initiative in 2016. But in a survey of likely voters released last month, more than six-in-ten (62 percent) said they now support legalizing cannabis, while 32 percent are opposed.
Opponents of the proposal, including Gov. Doug Ducey (R), recently released official voter guide arguments against the initiative. Supporters filed arguments as well, and all will be circulated to voters in a pamphlet printed by the state.
The governor, in his submission, argued that legalization is “a bad idea based on false promises.”
Meanwhile, pro-legalization activists are asking supporters to share personal stories about why they support the cannabis ballot measure.
Share your personal story or reason for supporting Smart and Safe AZ, for the chance to be featured on our social media platforms! Submit your story on our website: https://t.co/Kbxa003kXK #SmartandSafeAZ #legalizemarijuana pic.twitter.com/EhO7jeFuPG
— Smart & Safe AZ (@SmartandSafeAZ) August 10, 2020
Here’s a status update on other 2020 drug policy reform campaigns across the country:
The Washington, D.C. Board of Elections certified last week that activists submitted enough valid signatures to place a measure to decriminalize plant- and fungi-based psychedelics in the nation’s capital.
Oregon’s secretary of state confirmed last month that separate measures to legalize psilocybin therapy and decriminalize possession of all drugs while expanding treatment services will appear on the November ballot.
Montana activists said last month that county officials have already certified that they collected enough signatures to place two marijuana legalization measure on the state ballot, though the secretary of state’s office has yet to make that official.
Organizers in Nebraska last month submitted 182,000 signatures in an attempt to put a medical marijuana measure on November’s ballot.
Idaho activists behind a medical marijuana legalization initiative were hoping to get a second wind after a federal judge said recently that the state must make accommodations for a separate ballot campaign due to signature gathering complications caused by the coronavirus pandemic. But following a U.S. Supreme Court ruling against the other group last week, hopes are dashed.
Prior to the COVID-19 outbreak and stay-at-home mandates, separate measures to legalize marijuana for medical and recreational purposes qualified for South Dakota’s November ballot.
The New Jersey legislature approved putting a cannabis legalization referendum before voters as well.
And in Mississippi, activists gathered enough signatures to qualify a medical cannabis legalization initiative for the ballot—though lawmakers also approved a competing (and from advocates’ standpoint, less desirable) medical marijuana proposal that will appear alongside the campaign-backed initiative.
A campaign to legalize cannabis in Missouri officially gave up its effort for 2020 due to signature collection being virtually impossible in the face of social distancing measures.
North Dakota marijuana legalization activists are shifting focus and will seek qualification for the 2022 ballot.
Washington State activists had planned to pursue a drug decriminalization and treatment measure through the ballot, but citing concerns about the COVID-19 outbreak, they announced last month that they will be targeting the legislature instead.
Photo courtesy of Mike Latimer.
Federal Drug Decriminalization Model Unveiled By Top Reform Group
A leading drug policy reform group recently unveiled a framework to federally decriminalize all illicit drugs that they hope will be embraced by Congress.
The Drug Policy Alliance (DPA) said ending the drug war will help address racial disparities in the criminal justice system and promote public health. The proposal is being rolled out ahead of the 50th anniversary of the enactment of the Controlled Substances Act, the legislative basis of today’s federal drug criminalization.
Full bill text of the proposed “Drug Policy Reform Act” isn’t available yet, but according to a summary, it will contain provisions to end strict sentencing constructs such as mandatory minimums for drug conspiracy offenses, provide for expungements and end collateral consequences for drug convictions like the denial of public benefits and educational loans. It would also defund federal drug agencies such as the Drug Enforcement Administration (DEA) and the White House Office of National Drug Control Policy.
“There are many elected officials—on and off the Hill—that speak to the sentiments of drug decriminalization, continually touting drug use should be treated as a public health issue instead of a criminal issue—most notably when it comes to marijuana,” Queen Adesuyi, policy manager at DPA’s Office of National Affairs, told Marijuana Moment.
“However, tides are shifting and this transformational political moment calls for this roadmap we have provided legislators to begin repairing the extensive devastation the failed drug war has created beyond marijuana and beyond talking points,” she said. “There are congressional offices and allies who are, in fact, ready to see the end of criminalizing people for drug use actualized; we’re looking forward to working with them to lay the groundwork for this much needed reform in Congress.”
Criminal penalties for simple possession would be removed on the federal level. While Congress can’t change state laws under which a majority of people punished for drug offenses are prosecuted, the proposal states that federal dollars would no longer go to states for drug enforcement purposes. Also, military equipment would not be allowed to be transferred to local or state law enforcement departments for drug enforcement, no-knock warrants and surveillance technologies for drug offenses would be prohibited and employment discrimination based on criminal conviction disclosures would also be banned.
Under the proposed legislation, drug scheduling classification responsibilities would be shifted from DEA to the National Institutes of Health (NIH).
NIH would also led a rulemaking task force to create a definition for “personal use quantities” and establish a process for “facilitating voluntary access to services for those seeking addiction treatment,” according to the summary.
The legislation would also promote investments in harm reduction programs to treat substance misuse.
“Removing criminal penalties for drugs is a first step in repairing the harms of the drug war,” Theshia Naidoo, managing director of criminal justice law and policy at DPA, said in a press release.
“In 2018 alone, over 1.6 million people were arrested on drug charges, over 86 percent of which were just for possession. These arrests can have impacts that last for a lifetime, often preventing access to employment, housing, financial aid for college, and even jeopardizing parental rights or immigration status,” she said. “And as we all know too well, these laws are far from equal. They are disproportionately enforced on Black, Latinx & Indigenous people, resulting in generational trauma, vilification and economic hardship on entire communities.”
At the state level, voters in Oregon could make the state the first in the nation to decriminalize possession of all drugs after an initiative to enact that policy change officially qualified for the ballot last month.
Insiders at the Vermont Democratic Party are also circulating a draft platform that proposes adding an end criminalization for drugs as a 2020 plank.
While neither President Trump or presumptive Democratic presidential candidate Joe Biden has backed broad drug decriminalization, presidential nominees for the Libertarian and Green Parties have both voiced support for the policy change.
Read DPA’s summary of its proposed drug decriminalization legislation below: