On May 28, the United States Department of Agriculture published a four-point legal opinion aimed at clearing up some of the lingering confusion regarding the status of hemp. On December 20, 2018, the federal government enacted the Agriculture Improvement Act of 2018, aka the Farm Bill, legalizing the production of hemp. That bill also changed the Controlled Substances Act, removing hemp, hemp seeds and other hemp derivatives from the list of prohibited substances.
But the major change in hemp’s legal status hasn’t prevented law enforcement from cracking down on hemp producers, sellers and distributors. Concerned about such risks, hemp businesses have been cautious about moving their products, particularly across state lines. The USDA memo, however, makes clear that no state or tribal authority can prohibit or otherwise impede the interstate commerce of hemp.
USDA Tells States to Keep Hands Off Hemp Shipments
The 2018 Farm Bill removed non-narcotic hemp—i.e., with less than 0.3 percent THC—from the list of Schedule I controlled substances. The bill also explicitly states that US states must permit the interstate transportation or shipment of hemp.
But because the USDA had until this week not issued any regulatory guidelines based on the Farm Bill, law enforcement and hemp industry operators weren’t sure what the rules were. Conflicts between existing state laws and the new federal law legalizing industrial hemp made it difficult for inspectors to know which rules to enforce.
As a result of the confusion, law enforcement authorities in many states blocked and confiscated shipments of hemp passing through their states. These authorities made the case that without clear rules, it was completely okay for them to intercept hemp shipments.
But on Tuesday, USDA general counsel Stephen Vaden emphasized two important aspects of the 2018 Farm Bill relating to hemp. “First, the 2018 Farm Bill preserves the authrity of the states and Indian tribes to enact and enforce laws regulating the production of hemp,” Vaden’s memo reads. But states and tribal authorities do not have the authority to enact and enforce laws regulating the interstate transportation or shipment of hemp “that are more stringent than federal law,” Vaden wrote.
Legal Opinion Brings Needed Certainty for US Hemp Industry
The USDA says it’s legal to transport and ship hemp across state lines, so long as that hemp is grown in accordance with federal law. So even if states haven’t passed any laws that allow the cultivation and production of hemp, they still can’t prohibit interstate hemp commerce. As long as the hemp crop was produced under a USDA license, by a USDA-approved state program or under the 2014 federal pilot project for hemp, states have to let it pass through.
Kentucky Agriculture Commissioner Ryan F. Quarles is applauding the legal clarification the USDA provided this week, saying it provides much needed certainty for industry operators.
“The policy announcement from the USDA confirms what Kentucky has been saying all along,” Quarles said in a statement. “The 2018 Farm Bill made hemp legal nationwide, and it is unlawful for any state agency to interfere in the transportation of lawfully produced hemp.”
In addition to removing hemp and non-narcotic hemp products from the Controlled Substances Act and authorizing interstate commerce, the USDA legal opinion also clarifies rules addressing industry participation for past drug offenders.
USDA Clarifies Rules for Felon Participation in Hemp Industry
Vaden’s opinion states that any person with a state or federal felony conviction relating to a controlled substance cannot work in the hemp industry for a period of 10 years. However, Vaden’s opinion emphasized an important exception. If a person lawfully grew hemp under the 2014 Farm Bill pilot program and received a conviction before December 20, 2018, they can still participate in the hemp industry.