by Paul Goeringer
Post date: Jan 14, 2019
The article is not a substitute for legal advice. This article can not be reposted without approval of author.
Farmers across the country are looking to begin producing hemp. The 2014 Farm Bill allowed states to develop hemp research programs, but the 2018 Farm Bill significantly changes the classification of hemp and allows states to begin developing regulations for legal hemp production. The 2018 Farm Bill removes hemp from the definition of marijuana under the Controlled Substances Act and allows states and tribal governments to begin developing hemp production plans. Hemp produced under these plans will potentially be eligible for federal crop insurance. Although the 2018 Farm Bill has made changes to hemp, it is still currently not legal to grow hemp in Maryland until the state develops and has an approved hemp production plan in place.
Changes to the Controlled Substances Act
The 2018 Farm Bill declassifies hemp as a controlled substance. Under Section 12619 classification the definition of marijuana does not include hemp. Section 10113 defines hemp to be “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.” Any hemp plants with a delta-9 tetrahydrocannabinol concentration (THC) level greater than 0.3 percent on a dry weight basis is considered marijuana and still illegal under federal law.
State and Federal Hemp Production Plans
Although hemp is no longer a Schedule 1 drug, this does not mean it is legal to grow. To be legal, Section 10113 requires that a state, tribe, or federal government develop a hemp production plan. Using such a hemp production plan, a state, tribe, or federal government will monitor producers and regulate hemp production. Section 10113 lays out two routes for a producer to legally begin producing hemp. The first route is for a state or tribal government to take charge of regulating hemp production within their boundaries. To do so, a state department of agriculture will submit to USDA a hemp production plan for approval. The hemp production plan must include:
- The system of land where hemp is being produced, including the legal description of the land. The system will need to maintain land records for at least three years.
- Testing procedures to demonstrate that hemp produced has less than 0.3 percent THC concentration level per dry weight basis.
- Procedures for destroying any plants and products with THC concentrations higher than allowed by the law.
- Procedures to enforce the law.
- Procedures for conducting at minimum annual inspections of a random sample of hemp producers to verify hemp produced in the state does not violate the law.
- A system to convey hemp producers' information to USDA
- Certification for USDA that the state or tribe has the resources and personnel to carry out the requirements of the hemp production plan.
A producer must comply first with the state's hemp production plan before legally growing hemp. Currently, these plans are expected to take a year to 18 months for states to finalize and USDA to approve.
If the state or tribal government does not have an approved production plan, then a producer may still be able to produce hemp under a hemp production plan developed by USDA. For example, if state law still classifies hemp as a controlled substance, then Section 10113 will not preempt this. Section 10113 allows states or tribal governments explicitly to prevent hemp production in their boundaries. If the state or tribal government does not criminalize hemp production, then the USDA hemp production plan will need to meet the same minimum criteria required for states and tribal governments.
Violations
Section 10113 lays out potential violations. A producer can negligently violate a state plan, tribal government plan, or USDA hemp production plan by not providing a proper legal description of the land where the hemp will be produced, by failing to obtain the required license or other authorization required under the plan before producing hemp, and by producing hemp with a THC level greater than 0.3 percent on a dry weight basis; these are just some examples of potential violations.
With the first negligent violation, a producer can correct the violation by complying with a corrective action plan developed by the state, tribal government, or USDA. Three negligent violations in five years will result in barring the producer from producing hemp for five years. Note that Section 10113 does not allow anyone with a felony drug conviction within the past ten years to grow hemp under a hemp production plan.
Crop Insurance Coverage
Section 11119 adds hemp to the list of insurable agricultural commodities under the Federal Crop Insurance Act. Other provisions in the Farm Bill will allow USDA to develop pilot programs which will allow for the establishment of hemp coverage.
Status of Industrial Hemp in Maryland
Maryland's criminal law currently excludes hemp from the definition of marijuana. Section 5-101 excludes "the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9-tetrahydrocannabinol concentration that does not exceed 0.3% on a dry weight basis.” (Md. Code Ann., Crim. Law. § 5-101 (r)(2)(vi)). Currently, the Maryland General Assembly would need to give MDA the authority to create a hemp production plan (Md. Code Ann., Agric. §§ 14-101 to 14-102). MDA only has the authority to create a hemp pilot research program and would need additional authority to develop the hemp production plan and any additional protections that the General Assembly may want to add beyond what the 2018 Farm Bill does. Until then, hemp remains illegal to produce in the state.
One important note about the 2018 Farm Bill, Section 10114 allows for hemp products to be transported freely through states. States can still ban hemp products, but the state would not be able to limit transportation through the state of hemp products bound for other states. But until hemp production plans are approved by USDA, hemp can only legally be grown under existing state research programs.
