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The Farm Bill, Industrial Hemp and what it
means for Ohio
By Sam Custer, OSU Extension, Darke County
We have been getting a few calls in the office recently about Hemp that
was addressed in the recently signed Farm Bill. Ellen Essman,
Senior Research Associate, OSU Extension Agricultural and Resource Law
Program wrote in the Farm Office blog to highlight the provisions in
the bill and the results for Ohio.
Hemp is one of the most talked-about provisions of the new Farm Bill
passed earlier this month by Congress and signed by the President on
December 20. There’s a lot of excitement about the removal
of federal restrictions on hemp production and the economic
opportunities for growing hemp. But what exactly does the Farm
Bill say about hemp? Can Ohioans now grow, use and sell hemp and
hemp products? We dove into the 807 pages of the Farm Bill
Conference Report to find answers to your questions about the new legal
status of hemp and hemp cultivation.
What is hemp?
Before we go much further in this discussion, it’s important to
understand that both hemp and marijuana are species of cannabis, but
they have different properties. Of particular note is the fact
that marijuana contains much more tetrahydrocannabinol (THC) than
hemp. THC is the part of a cannabis plant that can cause a
psychoactive effect in certain concentrations, but hemp plants
generally do not contain enough THC to produce a “high.” Hemp has
many uses— it can be used for construction materials, fabrics and
clothing, and animal bedding. It has even been discussed as a
potential cover crop. Cannabidiol, or CBD, is a very popular
extract of the hemp plant that is alleged to help those with anxiety,
pain, inflammation, and other ailments, but not much research has been
done to verify its effectiveness for medical use. Note that CBD
is also an extract of the higher THC marijuana plant.
Hemp is removed from the federal list of controlled substances—but only
if it meets certain requirements
First and foremost, the Farm Bill removes hemp from the federal list of
controlled substances. Section 12619 of the bill removes hemp
from the definition of marijuana, which is still an illegal drug under
federal law. In the same section, the bill federally
decriminalizes tetrahydrocannabinols (THC) in hemp. Not all hemp,
however, is subject to this exemption. Only hemp and THC as
defined in the Farm Bill and as grown under the conditions set forth in
the Farm Bill are accorded the exemption.
So, how does the Farm Bill change the definition of hemp? The
main hemp provision of the bill, Section 10113, separates hemp from the
definition of marijuana and redefines hemp as “the 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.”
Coming soon: state and federal hemp production plans
The new law doesn’t allow a producer to start growing hemp today.
Instead, Section 10113 of the Farm Bill describes the two situations
under which a producer will be able to engage in legal hemp production
in the future. In the first situation, the States or Indian
tribes may take charge of the regulation of hemp production within
their boundaries. To do this, a State must first submit a plan to
the USDA through their state department of agriculture. A State
plan must include:
A way to keep track of land where hemp is produced within the state;
Methods the state will use to test how much THC is in hemp
plants;
A way to dispose of plants or products that have a higher THC
concentration than is legally allowed;
A procedure for inspecting hemp producers;
A plan for enforcing the law;
A system for dissemination of a hemp producer’s information to the
USDA; and
Assurances that the state has the resources to carry out the plan.
A producer who wants to cultivate hemp in a State that has an approved
hemp production plan must first comply with the State’s plan before
beginning to grow hemp. Predictions are that it may take a
State about a year to create its hemp production plan and obtain the
required USDA approval for the plan.
The second situation for growing hemp comes into play if a State or
Tribe does not submit a hemp plan to USDA. In this case, as long
as the State has not limited the regulation or production of hemp under
state law, the Secretary of Agriculture for the USDA may establish a
plan “to monitor and regulate” hemp production within that State.
A plan established by the USDA must meet the same criteria as a plan
written by a State, and the law also requires the USDA to establish a
licensing procedure for producers. Thus, a producer in a
State that doesn’t have a hemp plan could legally grow hemp by
obtaining a USDA hemp license through the hemp regulations that the
USDA will develop, unless the State has prohibited hemp
cultivation. Section 10113 specifically states that it does not
preempt or limit any state law that “regulates the production of hemp”
as well as any state law that is “more stringent” than federal law in
regulating hemp production. Thus, a State can outlaw hemp
production within its boundaries or include additional restrictions and
requirements in its State plan as long as the plan complies with the
federal law requirements.
Handling producer violations
What if a hemp producer doesn’t comply with the new law or with the
State or USDA hemp production plan? Section 10113 also describes
how violations of the law will be handled. If a hemp producer
negligently violates a State or USDA hemp production plan, the producer
could be subject to enforcement. One negligent violation of the
plan would not trigger criminal punishment, but the violator would have
to comply with a corrective action plan prescribed by the State or
USDA. However, if a producer negligently violates a plan three
times in five years, the producer will be banned from producing hemp
for five years. Examples of negligent violations in the law include:
not providing a legal description of the land where hemp is produced,
growing hemp without obtaining a license “or other required
authorization” from the State, Tribe, or USDA, or producing hemp with a
THC concentration higher than 0.3 percent. If a producer violates a
State or USDA plan “with a culpable mental state greater than
negligence” (that is, purposely, knowingly, or recklessly), then the
State or USDA must report the violation to law enforcement
authorities. Furthermore, persons convicted of a felony relating
to a controlled substance under state or federal law are generally
barred from hemp production for ten years following the date of their
conviction, with the exception of persons convicted of a controlled
substances felony but lawfully participating in a pilot program under
the 2014 Farm Bill. Finally, if a person falsifies an application
to participate in hemp production, that person will be totally barred
from producing hemp.
Legal hemp not to be prohibited in interstate commerce
The new law also allows for the interstate commerce of legally produced
hemp and hemp products. Section 10114 says that a State or Indian Tribe
cannot prevent the transportation or shipment of legally produced hemp
through its state or territory. While a State may ban the sale of
hemp or hemp products solely within its borders, it must allow hemp
products to move freely through the State. For example, imagine
that Pennsylvania allows hemp production but Ohio does not.
Producers of legal hemp in Pennsylvania could not sell the hemp within
Ohio, but Ohio could not prohibit a truck, train, or other type of
transport from carrying the hemp through Ohio to a destination outside
of Ohio.
Hemp becomes eligible for crop insurance
Importantly, the Farm Bill also addresses hemp production risk by
amending the Federal Crop Insurance Act to include hemp. Section
1119 adds hemp to the definition of “agricultural commodities” that can
be insured and section 11106 adds legally produced hemp to the list of
crops that can be insured even after harvested. Other provisions
in Title XI waive marketability requirements for researching hemp.
Making way for hemp research funding
Several provisions in the Farm Bill ensure that it is legally
permissible to fund hemp research. Section 7129 amends the
National Agricultural Research, Extension, and Teaching Policy Act to
allow the Secretary of Agriculture to award grants for researching hemp
and the development of hemp products. In section 7501, the bill
amends the Critical Agricultural Materials Act to allow research on
hemp, meaning that Congress believes hemp has the “potential of
producing critical materials for strategic and industrial purposes.”
Finally, section 7605 amends the hemp pilot program language from the
2014 Farm Bill (for information on the pilot program, see our previous
blog post). The Secretary of Agriculture is tasked with
conducting a study on the pilot program and submitting a report on the
study to Congress within a year. Section 7605 also repeals the
hemp pilot programs, but only one year after final regulation on hemp
production under section 10113 is published.
How does current Ohio law treat hemp production?
Ohio law defines marijuana as “all parts of a plant of the genus
cannabis…” in Ohio Revised Code section 3719.01. Hemp is in the
genus cannabis, as discussed earlier in this post. Therefore,
under current Ohio law, hemp is the same as marijuana. Marijuana
is a controlled substance under Ohio law, and the law states that “[n]o
person shall knowingly obtain, possess, or use a controlled substance.”
What about hemp-derived CBD oil? Ohio enacted a medical marijuana
law in 2016, although dispensaries in the state have yet to open (so
far, only one dispensary in the state has been licensed). In
order to obtain medical marijuana in Ohio, it would have to be
prescribed by a physician with which the patient has a “bona fide
physician-client relationship,” and the patient would have to have a
qualifying medical condition. Medical marijuana can be prescribed
and used in oil form under the law. Since Ohio law lumps hemp in
with marijuana, this means that in order to obtain CBD oil derived from
hemp, a person would also have to follow the steps to obtain medical
marijuana. Hemp-derived CBD oil also does not fall under any exceptions
in Ohio’s definition of marijuana. Ohio’s State Board of Pharmacy
specifically stated in a guidance document that CBD oil can only be
legally dispensed from a licensed dispensary. In releasing this
guidance, the Board of Pharmacy is purporting to act under the
rulemaking authority granted under ORC 3796.04.
Note, however, that there are exceptions to Ohio’s definition of
marijuana. According to Ohio law, marijuana “does not include the
mature stalks of the plant, fiber produced from the stalks, oils or
cake made from the seeds of the plant, or any other compound,
manufacture, salt, derivative, mixture, or preparation of the mature
stalks, except the resin extracted from the mature stalks, fiber, oil
or cake, or the sterilized seed of the plant that is incapable of
germination.” Since hemp falls under the definition of marijuana,
it is possible that some of these exceptions could also apply to
certain hemp products made from stalks or seeds. Thus, it is plausible
that some hemp products could be sold and used in Ohio. The law
also states, however, that no person (other than those licensed under
the medical marijuana law) “shall knowingly cultivate” marijuana.
Again, since hemp is part of the state’s definition of marijuana, under
the law, that means that nobody can “knowingly cultivate” hemp, either.
In sum, it appears as though some excepted hemp products could be sold
in Ohio, but not CBD oil, as it does not fall under the
exception. Even if some hemp products can be sold in Ohio, hemp
itself cannot currently be cultivated in Ohio. The new hemp
language in the Farm Bill allows states to be more restrictive with
hemp than the federal government, so Ohio can continue its ban on
certain hemp products even with the new federal law. The State
cannot, however, stop the transportation of hemp across the State, as
explained above. Conversely, Ohio’s General Assembly could remove
hemp from Ohio’s definition of marijuana and redefine hemp according to
the Farm Bill’s new definition, which could allow for legal hemp
cultivation under the Farm Bill. For the time being, growing hemp
in Ohio is not legal, but that is subject to change.
For more information about OSU Extension, Darke County, visit the Darke
County OSU Extension web site at www.darke.osu.edu, the OSU Extension
Darke County Facebook page or contact Sam Custer, at 937.548.5215.
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