Before then, federal law did not recognize the differentiation between hemp and marijuana.
Consequently, since 1937, all cannabis varieties were effectively made illegal under the Marijuana Tax Act. And in 1970, it was formally established under the Controlled Substances Act.
This decision was primarily due to the misconceptions about this non-psychoactive plant and its expansive range of applications, which dates as far back as 8,000 BC.
Thankfully, the U.S. government, now recognizing the diverse opportunities hemp holds, implemented the 2018 Farm Bill. Under this bill, hemp and its derivatives are delisted from the Controlled Substances Act – finally a win for the cann-advocates.
But, it comes with significant restrictions.
THE NEW FARM BILL
While this is much better than the former policies that restricted hemp cultivation to research purposes only, it’s a bit too early to celebrate; because the industry isn’t quite there yet.
Several restrictions and stringent rules regarding hemp cultivation remain, which distinctly sets it apart from regular crops. As a result, individuals and businesses are still unable to grow hemp whenever and wherever they want.
A GRAY AREA
Section 1103 of the 2018 Farm Bill retains much of the former regulatory paradigm and expressly highlights the many restrictions and related sanctions.
A LITTLE MORE THC
Per the current Farm Bill, hemp is only identified as ‘hemp’ if it contains less than 0.3% THC. Thus, any cannabis plant containing more than this amount is labeled non-hemp cannabis and would have no legal protection under this new bill.
Unfortunately, complying with this rule isn’t straightforward. Hence, the uproar from many advocates on the impracticality of this threshold.
In an interview, he described that December as one of the hardest days in his life – and for good reason. The agriculturist, much like most hemp growers in this era of climate change and global uncertainty, had had to mow down over 80 acres of hemp with spiked THC levels. His crops had measured at 0.47% – a little over the 0.3% limit.
As much as he knew he’d have to destroy the non-compliant crops, he had planned to wait till he’d harvested his other crops. However, an inspector who had come to check his partner’s facilities reminded him of the consequences he risked incurring if he didn’t get rid of the hemp immediately.
According to Don Robison, seed administrator with the Office of Indiana State Chemist, this scenario is increasingly common in the industry due to the proportional relationship between individual phytocannabinoid levels.
Thus, for a farmer to confidently remain with the legal threshold, they’d have to harvest prematurely – or find better ways to track these levels.
As earlier stated, there is still no much-needed freedom to cultivate hemp as a cash crop; not just for the farmers but also state administrators. A state’s plan to license and regulate hemp can only commence after the Secretary of USDA approves the state’s plan, passed by its legislature.
Thus, under section 1103 of the Farm Bill, state departments of agriculture are obligated to consult with its chief law enforcement officer to devise and submit their regulatory plan to the Secretary of USDA for approval, after which the governor serves as its administrator.
The same applies for Native American Tribal Territories.
Fear of the Law
Outlined in the farm bill are also several activities that will be considered violations of the final federal hemp law. Some of which include: cultivating without a license and producing hot crops (hemp with over 0.3% THC).
Though the new rules have been instrumental in keeping compliance, the still present regulatory uncertainties are causing numerous third-party institutions to back off from all cannabis/hemp-related activities, regarding the situation as too huge a legal risk.
Plus, there is still a ban on certain convicted felons participating in hemp production. How does an industry with a wavering labor force thrive with these incessant restrictions?
FARMERS BEAR THE BRUNT
For instance: compliance with the 0.3% THC threshold.
Research has established that several factors can cause the transmutation of hemp into the more psychoactive cannabis – regardless of how much effort the farmer puts into compliance.
They could request a re-test incurring additional cost on their part or yield to the law.
If the former is the case, it is typical to have completely different results due to:
(i) Varying test conditions.
(ii) Plant stress factors, as well as maturity.
Again, the farmer is on the spot: another expensive test, or deal with the reality of having the now tagged “schedule 1 controlled substance” destroyed, which amounts to a huge financial blow.
THE NEED FOR A BETTER WAY
The federal government has played its part by opening new horizons with new laws. It is now up to other parties to meet midway and find ways to comply.
However, considering the many factors that can influence phytocannabinoid yield, while on the field and awaiting test results, it is easy to see that there is still much to be done.
Even with the new USDA rules on sample collection, it is not always possible to predict decisive factors before and during flowering.
Thus, farmers need methods that will enable them to monitor their plants effectively (in-vivo, most preferably) for proper planning and techniques that can assure them of foolproof testing.
With these techniques, it will be much easier to establish the prevalence of efficient, effective, and fair procedures for all the parties involved.