No one who has ever tried to follow the winding path of government regulations expected the legalization of industrial hemp to be easy. But USDA has taken an important first step to ensure growers can transport and market their crop.
Department of Agriculture attorneys have issued an opinion that attempts to clarify the issue of whether hemp can be transported through the six states that still ban the production and sale of industrial hemp.
“For those already involved in the hemp industry, transportation is the most important issue,” said Stephen Vaden, USDA’s general counsel and one of the authors of the opinion. He was the keynote speaker for the 2019 Mid-South Agricultural and Environmental Law Conference in Memphis, Tenn.
First, some background. The Agricultural Act of 2018 signed by President Trump last Dec. 20 authorizes the production and sale of industrial hemp containing no more than 0.3 percent delta-9 tetrahydrocannabinol or THC on a dry weight basis.
Most farmers cannot legally grow industrial hemp until USDA publishes the final regulations regarding the production and sale of the crop. That is not expected to happen until this fall, which means the crop could not be grown commercially by most farmers in 2019.
That does not apply to growers who have been participating in an industrial hemp pilot program authorized in the Agricultural Act of 2014. Those farmers can produce, transport and sell hemp with 0.3 percent THC or less. And that has resulted in problems.
The State Police in Idaho, which is one of the six states with bans on the production of hemp, seized seven tons of the crop being shipped by a grower in Oregon who was participating in the 2014 farm bill pilot program.
“Under the 2018 farm bill, as soon as the Department of Agriculture sends up its regulations implementing the 2018 farm bill, no state regardless of whether it is legal or illegal in that state to grow hemp can stop the interstate transportation of hemp,” said Vaden, a native of West Tennessee. “There is a specific provision in the 2018 farm bill which provides for this.
“The part of the opinion that made news is the second part of the opinion, that is, we have opined that it is also against the law for any state to impede the interstate transportation of hemp with regard to a producer who is participating in the 2014 hemp pilot program. That is particularly important this calendar year because as the department has already noted we will not have regulations implementing the 2018 hemp program in time for the growing season this year.
“Of course, the ability to grow hemp is not worth too much if you can’t market your commodity on a nationwide basis.”
Vaden said the USDA opinion uses the language of “other federal laws” in Subtitle G of the 2018 farm bill to bring in hemp produced under the 2014 farm bill to the transportation pre-emption provision.
“The magistrate judge in Idaho ruled against a request for a preliminary injunction which would have prevented Idaho from seizing the hemp,” he said. “That ruling has been appealed to the Ninth Circuit Court of Appeals. We make it very clear in our opinion that the magistrate judge in Idaho got it wrong.”
Vaden cited another case in West Virginia which “reaches exactly the opposite opinion. There the U.S. Attorney for the Southern District of West Virginia had filed suit against a West Virginia hemp producer who was operating under the 2014 pilot authority in that state.
“The judge for the Southern District of West Virginia ruled that the U.S. attorney did not have the authority to do this, and he correctly surmised you were supposed to allow the interstate shipment of hemp that was legally produced.”