Until the enactment of the Marihuana Tax Act of 1937, industrial hemp was a significant agricultural crop in the United States. Clothing and flags were made from it, it was a nutrient-dense source of grain, and Henry Ford built a car out of hemp that was fueled by it. That year federal law stopped commercial cultivation of cannabis, which included industrial varieties of the plant. Thus began the era of cannabis prohibition in the United States.
While many associate prohibition with the outlawing of psychoactive marijuana, the burgeoning momentum of 20th Century American hemp farmers was equally disrupted. Yet reputable publications touted its uses and benefits.
In 1937, “Popular Mechanics” described it as the new billion-dollar cash crop (back then, a billion dollars went a lot further than today). “Mechanical “Engineering” called hemp the “most profitable and desirable crop that can be grown.” With this in mind, I can’t help but ask – did we derail social progress by ending marijuana usage in the U.S.? Since the roots of cannabis prohibition were based in racism, xenophobia, elitism, and corporate protectionism – all issues we’re still reckoning with today – the answer seems fairly obvious.
Spin forward to the 2014 Farm Bill, when industrial hemp was defined separately from “marihuana’” under federal law. The most sweeping cannabis reform in American history was spearheaded by deep conservatives, such as Senate Majority Leader Mitch McConnell. Go figure. It was then in 2018, under the Trump administration that industrial hemp’s legality was further cemented with the enactment of the 2018 Farm Bill.
Well before that, in November 2012, Colorado became the first state to reintroduce hemp cultivation to the American farmer, offering commercial industrial hemp legalization, regulation, and production. Colorado’s Department of Agriculture (CDA) introduced rules and oversight of the industrial hemp industry. In 2013, Colorado’s Ryan Loflin became the first farmer in over 50 years to cultivate a major commercial hemp crop in the United States.
Federal government officials took a keen interest in these developments, but if you think they were going to adopt Colorado’s model, think again. When they began crafting their own policy for domestic hemp production, via the U.S. Department of Agriculture (USDA), they found Colorado’s policy too lenient.
The 2018 Farm Bill required states to submit oversight regulatory plans to the USDA for approval in order to qualify as federally lawful hemp. As of today, Colorado’s pioneering hemp program is out of compliance with USDA oversight — despite having a regulated commercial hemp program in place.
In August, 2020, the U.S. Department of Agriculture sent Colorado officials back to the drawing board to revise the state’s proposed hemp-farming regulations. Meanwhile, the State of New York abandoned its efforts to regulate industrial hemp after its plans were likewise rejected by the USDA. According to Richard Ball, New York’s Agriculture & Markets Commissioner, the requirements concerning the scope, timing, sampling, testing, and disposal of “hot” plants above the lawful 0.3% THC by dry weight is “unrealistic and imposes unreasonable burdens on growers and any state interested in administering a compliant program.”
That being said, a number of states and Tribal governments have been successfully approved by the USDA. Yet many of the top hemp producing states’ programs have not been, interrupting the flow of industrial hemp cultivation as we head into 2021. Is the bar set too high and does the USDA have unrealistic expectations of hemp farmers and departments of agriculture across the country? Or is this normal as a misunderstood crop comes out of the shadows and into the light as a disruptive agricultural commodity?
Time will tell as various state departments of agriculture and the USDA hopefully settle on approved plans carving a legal pathway for hemp biomass and derivatives to make their way to national and international markets. Producing American-grown hemp to meet the global demand for hemp products is what ultimately supports farmers, especially during this time of public health and economic crisis, as Senator Chuck Schumer has pointed out.
But what will happen if Colorado’s hemp plan doesn’t achieve USDA approval? New York has effectively abandoned present efforts to obtain that approval, and this is where things get interesting. I see three options.
The first is to operate under the 2014 Farm Bill, which provided federal authorization to the states to regulate hemp cultivation as they choose. This is a good option, but would require an extension by the federal government — and the language in the 2014 Farm Bill is not as broad as the 2018 version, which unequivocally removed hemp and its derivatives from the Controlled Substances Act for all commercial purposes.
The second option is that the USDA changes its requirements for the 2021 production year. This could happen, but to date we’ve seen no flexibility from the feds. Finally, growers who want to pursue cultivating an industrial hemp crop in 2021 will need to apply directly to the USDA for a producer license. If none of these things occurs, will the hemp produced by American Farmers in 2021 be legal?
This is why public comment is so important. The comment period on USDA’s Interim Final Rule on Domestic Hemp Production has been re-opened until October 8th. This is the chance to make our voice heard. In addition, the public comment period for the DEA’s Interim Final Rule is open until October 20th. If we don’t exercise our civic duty in this capacity, it is unequivocally a missed opportunity. It’s important to note that the more comments that these federal regulatory agencies receive, the more pressure they will feel to take action. At the close of the first public comment period on the USDA’s Interim Final Rule, there were only around 4,600 submissions. We need to be louder.
There is an extraordinarily simple solution for the USDA and state governments to eliminate most of their concerns: modified uniform seed certification procedures (under AOSCA and OECD), giving governments, farmers, and third parties certainty surrounding all of these issues, but that’s another topic for another day.
All of this is critically important, in terms of international commerce for these products and materials, as recipient countries will insist upon crystal clear U.S. legality of the plant material or derivatives prior to authorizing importation. Across America state and local law enforcement who fail to comprehend the complexities of hemp regulation may treat hemp crops as unlawful without transparent federal approval.
This represents the “horns of the dilemma” for hemp farmers, processors, investors, and the like. Are they victims of the current system or are they committing crimes just by doing business? We’re in for a bumpy ride as these policies unfold, as is the case with any new industry, but especially one built on a plant stigmatized for a century. In these circumstances, how do you quantify societal progress so long stifled by decades of waiting to tap into the potential of industrial hemp in our modern world? The good news is that we’re finally taking the steps that could lead to a better future, bolstered by the limitless possibilities of industrial hemp.