Even with the liberalization of the law in 2014, the federal government still prohibits industrial hemp production for commercial purposes. But this hasn’t stopped more than a dozen states from developing commercial hemp markets anyway. They’ve simply ignored the federal laws, nullifying prohibition in effect within their borders.
Seventeen states specifically authorize and license commercial hemp production despite federal prohibition, and many other states allow commercial cultivation despite paying lip-service to federal law.
FEDERAL FARM BILL
In 2014, Congress cracked the door open for hemp in the U.S. with an amendment to the 2014 Farm Bill. The law allows hemp cultivation for research purposes, but prohibits “commercial” production.
The “hemp amendment” in the 2014 farm bill—
…allows State Agriculture Departments, colleges and universities to grow hemp, defined as the non-drug oilseed and fiber varieties of Cannabis, for academic or agricultural research purposes, but it applies only to states where industrial hemp farming is already legal under state law.
In 2016, the U.S. Department of Agriculture and Drug Enforcement Agency released a “statement of principles” to guide interpretation of the hemp section in the Farm Bill. It states:
The growth and cultivation of industrial hemp may only take place in accordance with an agricultural pilot program to study the growth, cultivation, or marketing of industrial hemp established by a State department of agriculture or State agency responsible for agriculture in a State where the production of industrial hemp is otherwise legal under State law.
In short, the current federal law authorizes farming of hemp – by research institutions, or within state pilot programs – for research only. Farming for commercial purposes by individuals and businesses remains prohibited.
The definition of “commercial” and the extent to which sales and marketing are allowed under the rubric of “research” remains murky. This has created significant confusion.
The statement of principles also asserted that industrial hemp programs are limited to fiber and seed. It didn’t mention the CBD oil or other edible hemp products. In fact, the DEA has declared CBD illegal, and the FDA has also indicated hemp food products manufactured through research programs also violate federal law.
The DEA has since reiterated its stand on CBD oil, saying it cannot be sold under any circumstances. An Indiana TV station interviewed DEA spokesman Rusty Payne. who affirmed this position.
“It’s not legal. It’s just not.”
Payne said cannabis plants are considered a Schedule I controlled substance, and medicinal oils derived from cannabis plants are illegal according to two federal laws: the Controlled Substance Act and the Food, Drug and Cosmetic Act. He said confusion surrounding the 2014 farm bill is frequently cited as legal justification by those who want to manufacture, sell or use CBD oil. The DEA believes the Farm Bill permits only CBD research — not CBD marketing and sales.
“Anybody who’s in violation [of the federal laws] always runs that risk of arrest and prosecution,” he said.
IN THE STATES
According to a report released by the National Conference of State Legislators, 35 states have passed laws legalizing industrial hemp production. About half only allow cultivation for research purposes under federal law. But despite the threat of arrest and prosecution by the feds, farmers in 17 states across the U.S. have waded into the commercial industrial hemp business with the blessing and sanction of their state governments.
California, Colorado, Indiana, Maine, Maryland, Massachusetts, Minnesota, Nevada, North Dakota, Oregon, Rhode Island, South Carolina, Tennessee, Vermont, Virginia, West Virginia and Wyoming all permit licensed growers to produce industrial hemp for commercial purposes.
Connecticut also technically allows commercial hemp farming. In 2015, the state removed hemp from the state’s list of controlled substances. Farmers can grow the crop without any license or state oversight – just like tomatoes or corn. But the state has not created any kind of licensing program.
States that have ignored federal law have produced the most hemp. In 2017, states licensed more than 39,000 acres for hemp production. Of the top-10 hemp producing states, seven of them license commercial growers despite federal prohibition.
Kentucky presents a special case. The commonwealth ranks second in the U.S. behind Colorado in hemp acreage. State officials claim they follow federal law. But state law established “a commercial licensing program” authorizing hemp cultivation for any “legal purpose.” The phrase "legal purpose” technically excludes virtually all commercial production under the DEA’s interpretation of federal law.
Regardless of how the vague the statute reads, it’s clear what is happening in practice. Kentucky’s hemp program is not federally compliant, no matter how hard state officials try to convince you it is.
such products are already being grown, processed and consumed by Kentuckians every day
Walk into virtually any health food store in the commonwealth, and many major grocery chains, and you will find locally produced edible hemp products on the shelf. The feds claim this is illegal. More than half of Kentucky’s hemp acreage has been cultivated for CBD. The feds claim this is illegal. And yet the state Agriculture Commissioner noted in a letter to the DEA, “such products are already being grown, processed and consumed by Kentuckians every day, In fact, consumable hemp products were legal to buy and use even before the Industrial Hemp Research Pilot Program began in 2014.”
Nobody has gone to jail. The feds haven’t levied any fines. The DEA hasn’t sent in the SWAT team to destroy Kentucky hemp fields. A DEA spokesman even admitted to a Louisville newspaper that the agency is not enforcing the hemp law.
In fact, many of the 16 states that endeavor to run federally compliant, research only hemp programs are likely non-compliant in practice. Any program allowing the sale of CBD oil violates the law as interpreted by the federal bureaucracy.
Meanwhile, in Washington D.C., there is a strong movement to end federal hemp prohibition. On June 13, the Senate Agriculture Committee passed a farm bill including provisions to fully legalize industrial hemp. Kentucky Sen. Mitch McConnell is spearheading the effort.
In reality, the feds are just playing catch-up. With so many states already effectively nullifying prohibition, Congress has little choice but to relent. The federal government simply doesn’t have the personnel and resources to maintain its ban on commercial hemp farming with so many states refusing to cooperate. It also faces growing public opposition to its hemp policy.
States led the way with hemp just like they’ve led the way on marijuana. Although the feds haven’t abandoned their failed efforts to enforce marijuana laws, after more than two decades of state, local and individual nullification, their unconstitutional prohibition of cannabis is beginning to come apart at the seams. We’ve even seen dedicated drug warriors including Republican Speaker of the House John Boehner and Democrat Senate Minority Leader Chuck Schumer suddenly become outspoken weed advocates – not unlike McConnell’s sudden enthusiasm for legalizing hemp.
When states and individuals lead, the feds eventually follow. Successful hemp markets growing in states that have defied prohibition explode the myth of absolute federal power. As James Madison noted in Federalist #46:
“a refusal to cooperate with officers of the union” gives us a powerful tool we can use to undermine federal authority. Madison noted that “members of the federal will be more dependent on the members of the state governments, than the latter will be on the former.”
This has proven true. Without state, local and individual cooperation, the federal government cannot enforce all of its laws and regulations, or implement all of its programs.We can use this strategy to roll back federal overreach—whether the issue is hemp, marijuana, healthcare, gun control or anything else the feds have stuck their noses into, we just need to learn to say, “No!”