A number of states continue to take the wrong approach when it comes to setting industrial hemp policy.

We found a really good example of this unfolding in Kentucky.

After an article ran in the Louisville Courier-Journal last November highlighting the confusion surrounding federal hemp law, Kentucky Agriculture Commissioner Ryan Quarles fired off a letter to the federal Drug Enforcement Agency requesting a meeting with acting director Robert Patterson and begging for clarity on its hemp policy. The Courier article quoted DEA spokesmen Melvin Patterson as saying all hemp products that can be consumed are illegal.

That means a large portion of Kentucky’s supposedly federally compliant hemp program really isn’t – at least not as far as the DEA is concerned.

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.

So, what exactly does this mean in practice? Nobody really knows. Executive branch interpretation of the law has led to widespread confusion about what is and is not allowed.

The “hemp amendment” in the 2014 farm bill  —

…allows State Agriculture Departments, colleges and universities to grow hemp, defined as the non-drug oil-seed 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” remains murky.

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.The DEA has apparently interpreted that to mean they remain illegal.

Kentucky has gone to great pains to ensure its hemp program is compliant with federal law. Even so, it isn’t, at least not according to the DEA. As a result, Quarles has worked himself into a lather. In a speech he delivered to the Kentucky Department of Agriculture Hemp Advisory Board meeting on Dec. 13, Quarles begged the feds to end its defacto prohibition of industrial hemp.

“When I became Commissioner of Agriculture, I made a commitment to do everything I could to put Kentucky’s industrial hemp crop on the path to commercialization,” Quarles said. “In order for that to happen, Congress needs to pass a law to remove industrial hemp from the list of controlled substances.”

But Quarles is dead wrong. Congress doesn’t need to pass any law. The state just needs to push forward with developing a commercial hemp program and simply ignore the federal law. In fact, Kentucky is already in violation of federal mandates even with all of its backbreaking gymnastics to remain federally compliant.

Why worry about it now?

Ironically, Kentucky has demonstrated the effectiveness of state nullification. Walk into virtually any health food store in the commonwealth, or even many major grocery chains, and you will find 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 as Quarels noted in his 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. DEA spokesman Patterson even admitted the agency is not enforcing the hemp law.

“We’re in the middle of an opioid crisis, so our focus isn’t on coming in and seizing chocolate hemp,” Patterson said. “But it’s illegal.”

This raises a very important question: why does Congress need to pass a law to put Kentucky’s hemp crop on the path to commercialization?

The clear answer is it doesn’t.

Quarles and company should just ignore the federal law (as it is apparently already, however unintentionally) and push ahead and develop a full commercial hemp industry in the commonwealth. It doesn’t matter what the feds say – they aren’t doing anything. And they aren’t ever going to. If states push forward and develop thriving hemp industries, the federal government will never be able to stop it. This is evident in states that have intentionally ignored federal hemp laws. For example, federal enforcement has had zero impact on Oregon’s commercial hemp industry.

“Oregon has not had run-ins with the federal government over hemp,” Lindsay Eng, the state Department of Agriculture’s director of market access and certification told the Washington Capital Press. “We haven’t heard from the DEA at all, and we haven’t heard from growers saying they have.”

The federal government faces the same problem enforcing hemp prohibition as it does enforcing its marijuana laws. It simply doesn’t have the personnel or resources. The only reason federal hemp prohibition has any teeth is that state politicians like Quarles don’t have the courage to ignore the feds and do what’s best for the people in their states.

Instead of blaming politicians in D.C. for the roadblocks to commercial hemp in the commonwealth, the Kentucky ag commissioner needs to take a long, hard look in the mirror.

Mike Maharrey

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