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States have Proposed Hemp Regulations, but None Yet Approved by USDA

Posted by on Monday, March 4, 2019 in News, Updates.

As I explained back in Nov., the 2018 Farm Bill makes some important changes to federal law governing marijuana. See New Congressional Farm Bill Legalizes Some Marijuana. By redefining “marijuana” to exclude hemp (i.e., cannabis plants with very low levels of THC), the Farm Bill legalizes the manufacture, distribution, and possession of those cannabis plants as well as substances (like CBD) extracted from them.

The Farm Bill also seeks to impose some regulations on the production of hemp. Those regulations are to be drafted by the Department of Agriculture or, if a state so chooses (and the Secretary of Agriculture approves) by the state – the state regulations are called a “State Plan.” As discussed in my previous post, the Farm Bill imposes some minimum requirements and limits on State Plans (e.g., states must license and monitor hemp production).

As of early March, 2019, the USDA has not promulgated its own regulations, nor has it approved of any State Plans. (That hasn’t stopped some companies from going ahead and trying to take advantage of the legal protections afforded by the Farm Bill, as I discuss in Federal Court Refuses for Now to Order Return of 7,000 Pounds of Hemp Seized by State Police.) However, at least a few states have already submitted proposed State Plans to the U.S. Secretary of Agriculture, including Kentucky and Pennsylvania. The plans proposed thus far appear to be based on plans states had adopted to fulfill the requirements of previous agricultural bills. As discussed in the book (see page 25, n.2), Congress has given some limited permission to produced “hemp” since 2015.

It appears Kentucky was the first out of the gate to submit a State Plan under the more generous 2018 Farm Bill. Indeed, it submitted its State Plan to the U.S. Secretary of Agriculture the same day that President Trump signed the Farm Bill into law (Dec. 20, 2018). Kentucky’s fast move should come as no surprise. The hemp measure in the Farm Bill was strongly supported by Mitch McConnell, the Senate Majority Leader from Kentucky.

You can download the full Kentucky State Plan here. The Plan is rather lengthy and dull – it runs nearly 50 pages. Fortunately, Pennsylvania has created a summary of its own proposed State Plan, which it submitted to the Secretary on January 22, 2019. The summary can be found here. I have not had time to compare the State Plans, but I suspect (based on a quick read) that there are many similarities among them.

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