Recently Congress passed the Agricultural Improvement Act of 2018 (the “2018 Farm Bill”), which legalized activities pertaining to industrial hemp on the federal level. So now we can begin cultivating, processing, and selling industrial hemp, right? The short answer: No.
The 2018 Farm Bill legalized the cultivation and processing of industrial hemp, provided that the hemp used meets the following definition:
“[T]he plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”
Essentially, the United States Department of Agriculture (“USDA”) categorized industrial hemp as an agricultural commodity and removed it as Scheduled I controlled substance. (Note: Any product derived from “hemp” that falls outside of the above definition as set forth by the USDA, is considered a Schedule I drug and therefore still illegal under Federal Law.)
Great news, right? No so fast. What most people do not understand is that following this legalization, it becomes the responsibility of each State to regulate such industrial hemp activities. The states must now codify its own legislation, and the respective state department of food and agriculture must create regulations to support commercial activities concerning industrial hemp.
For example, California has codified general statutes pertaining to industrial hemp. See FAC Sec. 81000 et al. Specifically, Sec. 81003 provides that for one to engage in the commercial cultivation of industrial hemp, it must be registered with the County Agricultural Commissioner in which the commercial hemp cultivation will take place. This means that the individual counties in the state of California must implement rules and regulations regarding the industrial hemp activities.
However, it is up to the California Department of Food and Agricultural (the “CDFA”) to first draft and approve general regulations concerning industrial hemp, such as registration fees and sampling procedures. Thus, most County Agricultural Commissioners in California have not opened county registration, as they are awaiting the CDFA to adopt final regulations before they create their own, at least at the local level. While the CDFA is currently in the active rule making process, industrial hemp regulations have yet to be drafted and approved.
As another example, the state of Florida recently hired a new Cannabis Director who has stated that her initiatives include creating regulations pertaining to industrial hemp activities. However, because those regulations are not currently in place, commercial activities relating to industrial hemp remains illegal under Florida law.
Thus, despite industrial hemp being legal on the federal level, most states still have not adopted regulations addressing industrial hemp activities, and therefore, engaging in these activities are still prohibited at the state level. The regulatory drafting and approval process at the state and county levels will require time.
Some states are using either their cannabis regulatory division or their Department of Food and Agriculture to regulate the industrial hemp state programs. If you want to know more about industrial hemp in your state, make sure you check both regulatory agencies…especially before engaging in such activities.