The 2018 Farm Bill Explained
On December 20th of 2018, President Trump signed The Agriculture Improvement Act of 2018, also known as the 2018 Farm Bill. The bill includes updated provisions to the previous 2014 Farm Bill and has major implications on the legality of hemp. Experts are projecting that by 2022, hemp is a 20+ billion dollar industry.
As farmers transition their crops to embrace another wild west green rush, there are still many unknowns about what is and isn’t legal pertaining to hemp cultivation, manufacturing and sales of hemp-derived products. The United States Department of Agriculture is expected to put federal law into place by the fall of 2019 to have a more regulated 2020 season.
Expect updates about the law as we at Clone Connect are keeping a watchful eye and updating our information when it becomes available. But for now, below are outlines of what you need to know about the 2018 Farm Bill, in particular what it does and doesn’t do.
The High Level Overview
- Hemp comes from the plant cannabis sativa L. The same plant that marijuana comes from which was previoulsy included in the Controlled Substances Act. However, the updated Farm Bill now removes the plant from Controlled Substances Act if it contains no more than 0.3% THC (dry-weight).
- Marijuana (cannabis sativa L above 0.3% THC) will remain a Schedule 1 drug.
- The onus is now on U.S Department of Agriculture (USDA) to be the agency that defines national hemp regulations. They have been instructed to set laws “as expeditiously as practicable.”
- States, territories and Indian tribes can now submit to the USDA their hemp cultivation regulation plans. While there is no deadline, the plan has specific requirements to follow:
- The testing and inspection procedures (which at a minimum must be annually) for THC
- The bookkeeping methods and procedures in which land approved of hemp cultivation will be tracked and accounted for
- The protocol for “effective disposal” of any and all hemp plants that test greater than the legal THC limits
- The USDA has 60 days to either approve or reject those cultivation regulation plans.
- The USDA also has been granted one year to study the progress of hemp within the 42 states that were included in the original language of the Farm Bill and report those findings to Congress. Their task is to “determine economic viability of the domestic production and sale of industrial hemp.”
- Anyone with a drug felony within the last 10 years is banned from hemp cultivation.
- Hemp (and products derived from hemp) can now be transported from state to state as any other legal crop. This includes both importing and exporting.
- Though the bill contains a clause that guarantees interstate commerce for “hemp products,” it does not explain what ability the Food & Drug Administration (FDA) has to limit CBD use in foods, drugs and cosmetics.
- The bill guarantees that hemp and hemp products can be moved from state to state and can be imported and exported the same as any other crop.
- States have not been given any specific guidelines regarding regulations around hemp manufacturing and processing.
- Products that contain CBD are not guaranteed for interstate commerce
- The FDA has authority (and has already used that authority) to ban any foods, drugs or cosmetics that contain CBD
Who’s in charge?
As with any with any new industry, there are expected bumps, bruises and confusion along the way as rules and regulations are put into place. While there is still a gray area in hemp and each state doing things their own way, what is known is that the USDA and FDA are now in charge to oversee the hemp industry and federal regulations are coming by fall of 2019.
At a high level, what you need to know is that cultivation of hemp will be overseen by The U.S. Department of Agriculture and the manufacturing and sale of hemp related products will be regulated by the Food and Drug Administration (though it remains to be seen who will oversee hemp-derived products that are not related to food, medicine or cosmetics, i.e. hempcrete).
U.S. Department of Agriculture
- The USDA held a listening session on March 13, 2019 to “solicit stakeholder input on the design and functions of a USDA hemp production program.”
- The Farm Bill 2018 states that the USDA must develop its hemp regulations “as expeditiously as practicable.” Their interpretation of this is setting federal regulation by fall 2019 to guide the 2020 grow season.
- Though specific authority has not clearly been defined, there is an understanding that the USDA is to consult with U.S. Attorney General regarding rules and regulations.
- The USDA has 60 days to approve or reject a hemp plan once submitted by a state, territory or American Indian tribe.
- Any plan that is rejected by the USDA or any state, territory or tribe that does not submit a plan will have to follow federal guidelines of hemp production (those same federal regulations that are not yet in place).
- Federal regulation will include testing procedures. Despite that law not yet defined, farmers who commit 3 THC limit violations in a 5 year period could get a 5 year ban on growing hemp.
U.S. Food and Drug Administration
- Specific language within the Farm Bill states that any food, drug or cosmetic containing hemp, the FDA will retain its authority of oversight and regulation.
- With the craze of adding CBD to just above every product, expect the FDA to be heavily involved in the process of hemp regulation.
- Epidiolex is an FDA-approved drug that contains CBD. Therefore, CBD is listed as an “active ingredient in a drug product.” For that reason, the FDA has already made multiple announcements that CBD cannot be used in a food or dietary supplement because of its current classification.
- For the reasons outlined above, any other product containing CBD that isn’t Epidiolex is considered by the FDA to be “adulterated and misbranded.”
- Colorado has proactively passed a law specifically declaring that “food and cosmetics are not adulterated or misbranded by virtue of containing industrial hemp.” Because this claim includes CBD, the law can be viewed as going directly against FDA statements, but no legal action has been elevated to our judicial system.
- California and New York are taking the opposite approach of Colorado, stating that foods containing CBD cannot be sold until FDA defines its regulations. However, those states are applying minimal enforcement (more saying than doing).