While Marijuana Makes Headlines, Industrial Hemp Quietly Grows Legal

Thanks to changes legislated in the U.S. Farm Bill of 2013, numerous land grant universities across America currently sponsor and conduct research into agricultural and industrial hemp. The legality of such research depends on whether the state in which the university resides has formally approved hemp research pursuant to Section 7606 of the Farm Bill of 2013.1 Even in states where the issue has not made it on the legislative calendar, agricultural and land grant universities are taking the initiative to pursue research into the viable and commercial production of hemp.

Earlier this month, Oregon State University announced that faculty members in the College of Agricultural Sciences had submitted an application to the federal Drug Enforcement Administration and to the state Department of Agriculture seeking permission to conduct research on hemp. OSU hopes to get the necessary approvals in place to start work in the 2016 growing season.

It’s a move that many agri-researchers support, based on the promise industrial hemp offers to farmers. It makes common sense that land-grant universities would want to be in the forefront of research into hemp — as they would other promising crops.

But the road to securing approval to research hemp is extremely difficult. To appreciate the challenges to researching, producing and commercializing hemp requires not only a knowledge of the plant itself, but also an understanding of  the history behind America’s regulation of hemp.

Hemp is a commonly used term for high-growing varieties of the Cannabis plant and its products, such as hemp seed foods, hemp oil, wax, resin, rope, cloth, pulp, paper and fuel. Researchers, farmers and industrialists generally agree that industrial hemp is a promising agricultural commodity. Nutritionists are labeling hemp a "superfood" because hemp seeds contain a nearly perfect balance of omega 3 to omega 6, plus iron, vitamin E, and many essential amino acids. 

Although more than thirty nations, including Great Britain, expressly legalize the production of industrial hemp, the United States banned all hemp production in 1957 because of the plant's bio-genetic relationship to the cannabis species, and hence marijuana. Both plants contain the mind-altering chemical delta-9 tetrahydrocannabinol, commonly known as "THC." Federal law still prohibits commercial hemp production because hemp contains trace amounts of THC, the chemical in marijuana that produces a psycho-euphoric high. Because of this, and because the U.S. Drug Enforcement Agency asserts that hemp and marijuana are different parts of the same plant, both are categorized as restricted Schedule I drugs under the Controlled Substances Act of 1970.

Contrary to the "Reefer Madness" hysteria of the 1950s and 1960s, however, industrial hemp contains a much lower level of THC than marijuana. As science has begun to replace speculation, the laws prohibiting hemp have modernized. 

Beginning in 1998, the United States allowed the importation of hemp products, used in the manufacture of products that include fibers, food and fuel, from other countries. On February 7, 2014, President Obama signed the Farm Bill of 2013 into law. Section 7606 of the Farm Bill of 2013, entitled Legitimacy of Industrial Hemp Research, defines industrial hemp as a distinct agricultural product and authorizes institutions of higher education or states’ departments of agriculture that legalized hemp cultivation to conduct research and pilot programs. Under the federal exemption to hemp’s prohibition, permitted hemp plants may contain no more than three-tenths of one percent (0.3%) THC. By way of comparison, nonmedical marijuana of the type currently legalized for recreational use in states such as Alaska, Colorado and Washington State, has a THC content ranging from five percent (5%) to twenty percent (20%) THC.

Because hemp has not been grown in the United States since 1957, many scientists and commercial growers argue there is a strong need for research to develop new varieties of hemp that grow well in various states and meet the current market demands.

Responding to that demand, twenty-six (26) states have defined industrial hemp as distinct from marijuana, and removed barriers to its production. According to Vote Hemp, a national, single-issue, nonprofit organization dedicated to the acceptance of and free market for industrial hemp, these states will be able to take immediate advantage of the federal governments new industrial hemp research and pilot program provision contained in Section 7606 of the Farm Bill of 2013:

California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Indiana, Kentucky, MaineMaryland, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New York, North Dakota, Oregon, South Carolina, Tennessee, Utah, VermontWashington, West Virginia and Virginia.

Six states have hemp research crops planted in accordance with section 7606 of the Farm Bill and state law: Hawaii, Kentucky, Indiana, Minnesota, North Dakota, Tennessee.

Three states have licensed or registered farmers in 2015 to grow hemp under state law: Colorado, Oregon and Vermont.

Political leaders at both ends of the ideological spectrum – from the progressive U.S. Senator Ron Wyden (D-OR) to the conservative Senate Majority Leader  Mitch McConnell (R-KY), agree that hemp is a valuable agricultural product that merits greater regulatory and commercial support. With such broad support, it is not surprising that Congress this year has a number of legislative initiatives underway to promote the industrialization of hemp production in the US:

S. 134 and H.R. 525

These companion bills comprise "The Industrial Hemp Farming Act of 2015." S. 134 was introduced January 8, 2015, by Senators Ron Wyden (D-OR), Mitch McConnell (R-KY), Jeff Merkley (D-OR), and Rand Paul (R-KY). H.R. 525 was introduced January 21, 2015, by Representatives Thomas Massie (R-KY), and Jared Polis (D-CO), who marshalled a record-setting number of 47 cosponsors for a federal hemp legalization bill, including Amash (R-MI), Barr (R-KY), Blumenauer (D-OR), Bonamici (D-OR), Buck (R-CO), Cartwright (D-PA), Clay (D-MO), Cohen (D-TN), Cramer (R-ND), DeFazio (D-OR), DeGette (D-CO), DeLauro (D-CT), DelBene (D-WA), Ellison (D-MN), Farr (D-CA), Gabbard (D-HI), Grijalva (D-AZ), Hanna (R-NY), Holmes-Norton (D-DC), Honda (D-CA), Labrador (R-ID), Lee (D-CA), Lofgren (D-CA), McClintock (R-CA), McCollum (D-MN), McDermott (D-WA), Mulvaney (R-SC), Nadler (D-NY), O'Rourke (D-TX), Perry (R-PA), Peterson (D-MN), Pingree (D-ME), Pocan (D-WI), Polis (D-CO), Rohrabacher (R-CA), Ryan (D-OH), Schakowsky (D-IL), Schrader (D-OR), Stivers (R- OH), Young (R-IN), Walz (D-MN), Welch (D-VT), Yarmuth (D-KY), Yoho (R-FL), Young (R-IN), Young (R-AK), and Zinke (R-MT). If passed, this lawl would remove federal restrictions on the cultivation of industrial hemp.

H.R. 2578 - The FY 2016 Commerce, Justice, Science (CJS) Appropriations Act

Senate CJS Industrial Hemp Amendments Adopted

Sen. Tester (D-MT) presented amendment to prohibits funds for DOJ to contravene section 7606 of the Agricultural Act of 2014 relating to industrial hemp. Senate amendment passed with unanimous consent. No recorded vote

House CJS Industrial Hemp Amendments Adopted

Rep. Massie (R-KY) - An amendment to prohibit the use of funds to be used in contravention of section 7606 ("Legitimacy of Industrial Hemp Research") of the Agricultural Act of 2014 by the Department of Justice or the Drug Enforcement Administration." The amendment was adopted on a vote of 289-132

Rep. Bonamici (D-OR) - An amendment numbered 9 printed in the Congressional Record to prohibit the use of funds to prevent a State from implementing its own State laws that authorize the use, distribution, possession, or cultivation of industrial hemp. The amendment was adopted on a vote of 282 - 146

Rep. Perry (R-PA) - An amendment to prohibit the use of funds to take any action to prevent a State from implementing any law that makes it lawful to possess, distribute, or use cannabidiol oil. The amendment was adopted on a vote of 297 - 130

Although Florida has not yet legalized research or production of industrial hemp, Sen. Jeff Clemens, D-Lake Worth, and Rep. Michelle Rehwinkel Vasilinda, D-Tallahassee, are the sponsors of Senate Bill 544, and House Bill 271, respectively, that will be debated in the upcoming 2016 Legislative Session. Under the proposed laws, growers who register with the Florida Department of Agriculture and Consumer Services could grow cannabis with a maximum of three-tenths of one percent (0.3%) tetrahydrocannabinol, or THC. In contrast, the THC levels in marijuana that cause euphoria generally range from three percent (3%) to twenty percent (20%) THC, according to the Florida Legislative Staff analysis associated with the proposed bills.

The Hemp Industries Association, a nonprofit trade group, estimates that domestic retail sales of hemp products such as shirts and rope, which are legal, reached $620 million in 2014. The University of Florida estimates that it would cost about $1.1 million for each of three years to study the feasibility of cultivating a viable hemp industry in Florida.

For more information regarding the legal cultivation of industrial hemp, contact GrayRobinson’s Regulated Products Group.

Richard Blau
Chair, Gray Robinson Regulated Products Group
GrayRobinson, P.A.
401 East Jackson Street
Suite 2700
Tampa, Florida 33602
Phone: 813.273.5000
Fax: 813.273.5145

1The text of Section 7606 of the 2013 Farm bill reads as follows:SEC. 7606. LEGITIMACY OF INDUSTRIAL HEMP RESEARCH.

(a) In General- Notwithstanding the Controlled Substances Act (21 U.S.C. 801 et seq.), the Safe and Drug-Free Schools and Communities Act (20 U.S.C. 7101 et seq.), chapter 81 of title 41, United States Code, or any other Federal law, an institution of higher education (as defined in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001)) or a State department of agriculture may grow or cultivate industrial hemp if--

(1) the industrial hemp is grown or cultivated for purposes of research conducted under an agricultural pilot program or other agricultural or academic research; and

(2) the growing or cultivating of industrial hemp is allowed under the laws of the State in which such institution of higher education or State department of agriculture is located and such research occurs.

(b) Definitions- In this section:

(1) AGRICULTURAL PILOT PROGRAM- The term `agricultural pilot program' means a pilot program to study the growth, cultivation, or marketing of industrial hemp--

(A) in States that permit the growth or cultivation of industrial hemp under the laws of the State; and

(B) in a manner that--

 (i) ensures that only institutions of higher education and State departments of agriculture are used to grow or cultivate industrial hemp;

(ii) requires that sites used for growing or cultivating industrial hemp in a State be certified by, and registered with, the State department of agriculture; and

(iii) authorizes State departments of agriculture to promulgate regulations to carry out the pilot program in the States in accordance with the purposes of this section.

(2) INDUSTRIAL HEMP- The term `industrial hemp' means the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

(3) STATE DEPARTMENT OF AGRICULTURE- The term `State department of agriculture' means the agency, commission, or department of a State government responsible for agriculture within the State.