Source: NCSL.org

Introduction

State legislatures have taken action to promote industrial hemp as an agricultural commodity in recent years. A wide range of products, including fibers, textiles, paper, construction and insulation materials, cosmetic products, animal feed, food, and beverages all may use hemp. The plant is estimated to be used in more than 25,000 products spanning nine markets: agriculture, textiles, recycling, automotive, furniture, food/nutrition/beverages, paper, construction materials and personal care.

While hemp and marijuana products both come from the cannabis plant, hemp is typically distinguished by its use, physical appearance and lower concentration of tetrahydrocannabinol (THC). Hemp farmers and producers often grow the plant for the seeds and stalk. The plant is cultivated to grow taller, denser and with a single stalk. Marijuana, grown for the budding flowers, tends to be grown shorter, bushier and well-spaced.

Federal Action

President Obama signed the Agricultural Act of 2014, or the 2014 Farm Bill, which featured Section 7606 allowing for universities and state departments of agriculture to begin cultivating industrial hemp for limited purposes. Specifically, the law allows universities and state departments of agriculture to 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.”

The law also requires that the grow sites be certified by—and registered with—their state.

In 2015, a bipartisan group of U.S. senators introduced the Industrial Hemp Farming Act of 2015 that would allow American farmers to produce and cultivate industrial hemp. The bill would remove hemp from the controlled substances list as long as it contained no more than 0.3 percent THC.

The U.S. Department of Agriculture, in consultation with the U.S. Drug Enforcement Agency (DEA) and the U.S. Food and Drug Administration, released a Statement of Principles on Industrial Hemp in the Federal Register on Aug 12, 2016, to inform the public on the applicable activities related to hemp in the 2014 Farm Bill.

State Action

At least 30 states passed legislation related to industrial hemp. Generally, states have taken three approaches: (1) establish industrial hemp research and/or pilot programs, (2) authorize studies of the industrial hemp industry, or (3) establish commercial industrial hemp programs. Some states establishing these programs require a change in federal laws or a waiver from the DEA prior to implementation.

At least 16 states have legalized industrial hemp production for commercial purposes and 20 states have passed laws allowing research and pilot programs. Seven states—Colorado, Kentucky, Maryland, Minnesota, North Dakota, Rhode Island and Virginia—have approved the creation of both pilot/research and commercial programs. Many of the states that have legalized hemp cultivation for commercial purposes specify that state law does not allow for violation of federal law. States including California, Indiana, Kentucky, Minnesota, Montana and Virginia have established a framework for regulating commercial hemp but still consider hemp illegal outside of research programs unless federal law changes.

Defining Hemp

State statutes, with the exception of West Virginia, define industrial hemp as a variety of cannabis with a THC concentration of not more than 0.3 percent. West Virginia defines hemp as cannabis with a THC concentration of less than 1 percent.

Many state definitions for industrial hemp specify that THC concentration is on a dry weight basis and can be measured from any part of the plant. Some states also require the plant to be possessed by a licensed grower for it to be considered under the definition of industrial hemp.

Research and Pilot Programs

At least 20 states have passed laws creating industrial hemp research or pilot programs. State agencies and institutions of higher education administer these programs in order to study the cultivation, processing, and economics of industrial hemp. Pilot programs may be limited to a certain period of time and may require periodic reporting from participants and state agencies. Some states establish specific regulatory agencies or committees, rules, and goals to oversee the research programs. States may also require coordination between specific colleges or universities and the programs, in other states coordination is optional. From 2015 to 2016, seven states enacted legislation to create hemp research or pilot programs, including recent action in Pennsylvania (H.B. 976) and Hawaii (S.B. 2659).

While industrial hemp research and pilot programs typically focus on studying the cultivation, processing for certain products and economic impacts of hemp, some states have specific guidelines and intended goals. Here are some examples of unique state research goals:

  • Colorado S.B. 184 (2014) created an Industrial Hemp Grant Research Program for state universities to research and develop hemp strains that are best suited for industrial applications and develop new seed strains.
  • Kentucky’s industrial hemp research program studies the environmental benefit or impact of hemp, the potential use of hemp as an energy source or biofuel, and the agronomy research being conducted worldwide relating to hemp.
  • The North Carolina Hemp Commission studies the best practices for soil conservation and restoration in collaboration with two state universities.

Licensing, Regulation and Permitting

To ensure hemp is grown only for research purposes, growers must be licensed, registered or permitted with the state agency overseeing the pilot or research program. Requirements for registration, licenses and permits might include:

  • Criminal background checks.
  • Periodic renewals, usually every one to three years.
  • Registering the location or Global Positioning System (GPS) coordinates of grow sites.
  • Record keeping and reporting any sales or distributions including to whom it was sold or distributed,  including processors.
  • Documentation from the state agency or institution of higher education to prove the grower is participating in an approved program.

The state agencies overseeing these programs are typically authorized to conduct inspections, test the plants and review records. State agencies may revoke licenses and impose civil and criminal penalties against growers who violate regulations.

Seed Certification and Access

Access to viable seed may present a challenge for research programs and commercial growers. To implement commercial and research hemp programs, farmers need access to seeds that are guaranteed to produce plants that fall under the legal definition of hemp. These seeds can be difficult to obtain, however, because  hemp is still regulated under the federal Controlled Substances Act. In response to this problem, Colorado’s governor sent a letter to the U.S. secretary of agriculture in 2014 requesting the federal government address hemp seed regulations.

States are taking independent action to regulate industrial hemp seeds. At least 11 states have seed certification programs and/or require that growers use certified hemp seeds or acquire their seeds from a certified seed source. Certified seeds are usually defined as seeds that contain less than 0.3 percent THC or produce hemp plants that contain less than 0.3 percent THC.

At least four states have also established specific licenses or certification programs for hemp seed distributors and producers:

  • California requires seed breeders to register with their local county agricultural commissioner.
  • Indiana allows growers who obtain an agricultural hemp seed production license to produce seeds. Licensees may then sell seeds or retain them to propagate future crops.
  • Maine allows the commissioner of agriculture, conservation and forestry to issue licenses to seed distributors if their seeds are from a certified seed source.
  • Oregon requires growers who produce hemp seeds capable of germination to register with the Oregon Department of Agriculture if they intend to sell seeds. Growers who wish to retain seeds do not need to register as a seed producer.

Criminal Justice and Legalization

State legislation  also has removed hemp from the state’s controlled substances list and exempted industrial hemp from the statutory definition of marijuana if it is grown within specific regulations.

To protect growers from criminal prosecution some states provide an affirmative defense for cannabis possession and cultivation charges under controlled substances law for licensed individuals. States may require licensees to obtain a controlled substances registration from the DEA for the affirmative defense to apply.

For a summary of state laws related to industrial hemp, click the small map on the side bar.

Note that some states laws establishing commercial industrial hemp programs require a change in federal law or waivers from the U.S. Drug Enforcement Agency before those programs can be implemented by the state.

Click here to read an overview of hemp history!