Where does industrial hemp stand now that the 2014 Farm Act has expired?
As I discussed here, it was likely that the 2018 Farm Bill would not pass before the 2014 Farm Act expired on September 30. Well, my prediction (along with the predictions of most other commentators) was accurate. Congress has not yet enacted the 2018 Farm Bill. It is likely to pass within the next 8 weeks or so. However, what is the current legal status of industrial hemp now that the 2014 Farm Act has expired?
Fortunately, industrial hemp remains lawful under the pilot programs that have already been created. The industrial hemp provisions of the 2014 Farm Act did not terminate. They will remain in effect unless and until Congress changes the law. In fact, the 2018 Farm Bill includes provisions to phase out the industrial hemp pilot program. These provisions are necessary since the industrial hemp provisions of the 2014 Farm Act do not self-terminate.
Second, Congress continues to protect industrial hemp through provisions in appropriations acts that prohibit the use of federal funds to interfere with the “transportation, processing, sale, or use” of industrial hemp “within or outside the State in which the industrial hemp is grown or cultivated.” This prohibits any agency that receives federal funds, including state agencies, from interfering with industrial hemp.
Congress has protected hemp in this way through several consecutive spending acts. The most recent one, the “Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019 and Continuing Appropriations Act, 2019” was enacted on September 28, 2018 and remains in effect through December 7, 2018. It continues the hemp protections found in the FY18 Agriculture, Food and Drug Administration, Rural Development, and Related Agencies Appropriations Act, which include the following provisions related to industrial hemp:
SEC. 537. None of the funds made available by this Act may be used in contravention of section 7606 (‘‘Legitimacy of Industrial Hemp Research’’) of the Agricultural Act of 2014 (Public Law 113–79) by the Department of Justice or the Drug Enforcement Administration. [Page 239]
SEC. 729. None of the funds made available by this Act or any other Act may be used—
(1) in contravention of section 7606 of the Agricultural Act of 2014 (7 U.S.C. 5940); or
(2) to prohibit the transportation, processing, sale, or use of industrial hemp, or seeds of such plant, that is grown or cultivated in accordance with subsection section 7606 of the Agricultural Act of 6 2014, within or outside the State in which the industrial hemp is grown or cultivated. [Page 98]
Despite the above protections, we look forward to passage of the 2018 Farm Bill, which will both expand legal protections for hemp, including by making it lawful in all 50 states, and explicitly make it, and cannabinoids derived from it, lawful. Although they are lawful now in some circumstances when derived from industrial hemp, the current law is complex, somewhat convoluted, and promotes a significant amount of confusion.
Posted October 2, 2018
Rod Kight is a lawyer based in Asheville, NC. He is licensed in North Carolina and Oregon and represents legal cannabis businesses. You can contact him directly here.