While he did not use a hemp pen like the one used by Senate Majority Leader Mitch McConnell (R-KY) to sign the conference report, President Trump signed into law the 2018 farm bill that includes a provision that legalizes hemp. Specifically, the provision would remove hemp from the federal list of controlled substances, thus legalizing it as an agricultural commodity

In addition to this provision, the 2018 farm bill also will: grant states the opportunity to regulate hemp production; allow hemp researchers to apply for competitive federal grants from the US Department of Agriculture (USDA); and make hemp farmers eligible to apply for crop insurance. These provisions build upon the hemp pilot programs that were included in the 2014 farm bill.

Concerns/Challenges Remain

The enactment of these hemp provisions in the farm bill was driven by the increase in CBD’s popularity that resulted in an escalation in hemp production. While CBD producers are encouraged by the new law, there are lingering concerns over what will be comprised of future regulations.

FDA Status of CBD in Foods

Contrary to some reports, the farm bill does not modify any FDA regulatory requirements for products regulated by the agency. As we described in a previous alert, FDA has taken the position that CBD—whether derived from hemp or marijuana—may not be added to foods and dietary supplements. Therefore, unless FDA adopts a different approach for regulating CBD in agency-regulated products, companies marketing hemp-derived CBD products should be mindful of the potential risk of FDA enforcement action—particularly if they are making any sort of therapeutic claims.

Pesticide Use on Hemp Crops

With the hemp provision in the farm bill becoming law, it provides an opening for EPA to register the use of pesticides on hemp crops and establish tolerances for such use. As an Arent Fox article in March 2017 explained, EPA has declined to address this issue given the schedule I status under the Controlled Substances Act. Later that year, EPA declined efforts to approve certain pesticides for use on cannabis in states where cannabis has been legalized, noting its “general illegality.”

However, EPA’s refusal to address registration and tolerance issues resulted in the lack of a seed bank, which could make it more difficult initially to grow hemp compared to other crops. A seed bank allows growers to have a sense of a plant’s genetic diversity and the diseases they need to combat; without this knowledge, many growers will be starting from scratch, and attempting to make these determinations as they go through the process.

Testing

As this AP article notes, there are no national standards for how to test hemp for tetrahydrocannabinol, or THC, the psychoactive compound that, under federal law, cannot exceed 0.3 percent concentration in hemp plants. In addition, the testing rules across states are inconsistent, with some states requiring testing of samples that are predominately made up of flower material, and others requiring a blend of more parts to be tested.

There are also conflicting state rules for CBD, a cannabis compound with alleged healing qualities that’s sold as a natural remedy and ingredient in foods, drinks and lotions. According to Duane Sinning, director of the plant industry division at the Colorado Department of Agriculture in the AP article, “That will be the other real mess that will need to be cleaned up.”

In September, the National Association of State Departments of Agriculture formed a working group to identify uninform industry standards for which state departments of agriculture will administer industry hemp programs. In approving the specific action item, NASDA expressed support for “the development of uniform industry standards including the establishment of consistent procedures for states that require testing, for field sampling, sample preparation, and the testing of industrial hemp for THC by the gas chromatography method.”

Also, in the cannabis trade publication ‘mg,’ Martin A. Lee, Director of Project CBD, an organization that highlights the benefits of CBD, acknowledged that, while the farm bill solves some legality problems, “it will create some other problems and will highlight the shortcomings of federal policy toward the cannabis plant.”

Lee explained, “You have a situation where it will become legal to grow hemp federally, but when you extract and concentrate the oil it will be above 0.3 percent THC, so it will become illegal. So everyone involved in that process will be breaking both federal and state law unless the specific state’s medical marijuana law allows the growing hemp, which is not always the case.”