by Duane Stjernholm
Comments on the Establishment of a Domestic Hemp Production Program
AGENCY: Agricultural Marketing Service USDA
ACTION: Interim final rule with request for comments.
Please Note: Page Numbers reference the Federal Register
First of all we would like to laud everyone in the US Government that had a part in completing the Herculean Task of compiling and completing this Interim Document. However, we (the paid Shareholders, strategic collaborative partners, and Friends of the Colorado Hemp Processing Cooperative) have several concerns about some of the specifics of this document that require us to make the following comments. Thank you for allowing the 60 Comment Period that permits us to make our concerns public for your consideration to help make the Actual Final Rules the best they can be for everyone involved in this nascent revival of the US Hemp Industry.
We appreciate your efforts and hope that all US Government employees involved with these rules remember that they represent all US Citizens and that any Final Rules need to be formulated for the Greatest and Highest Good of all Americans. Government Employees at all levels, including Government Employees, Elected Officials and Government Contractors, are not paid by special interests, lobbyists, campaign contributors, and specific political parties, but by the taxes of all hard working US Citizens. We all need to Collaborate and celebrate that The US Hemp Industry is being revived after 80 years of dormancy. We additionally have the added benefit that we can revive it with 21st Century Technology. Being that it is the 21st Century, it is time to let go of the 20th Century’s manufactured “Reefer Madness” stigmatization that cannabis has been subjected to for the last 80 years. Hemp has the potential to bring economic stimulus to Rural America and as stewards of our future and our future generations prosperity, we need to maximize this potential.
For the purposes of these comments, we would like to remind you that hemp, as defined in the 2018 Farm Bill, means the plant species “Cannabis sativa L. and any part of the plant including the seeds thereof and all derivatives, extract, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis” (Federal Register IFR Introduction Page 58523 et al). In the Sampling and Testing for Delta-9 tetrahydrocannabinol (Section B Page 58524) it states that “… person shall collect samples from the flower material from such cannabis plants for delta-9 tetrahydrocannabinol concentration level testing”. This brings us to our first comment. As the Statutes require that only the flower material is being tested, and the definition of hemp includes any part of the plant, it is a non sequitur that the whole plant be destroyed if the flower material tests over the .3 THC (delta-9 tetrahydrocannabinol) level. The cannabinoids are the most concentrated in the flower, but since we are referring to any part of the whole plant in the definition and the various parts of the hemp plant are used for different purposes, why are we only testing the flower? Of course the flower is used for cannabinoids for recreational and medical purposes, but the leaves and seeds are used for food, and the stems and stalks used for fiber and paper among thousands of other uses. We would propose that a much more 21st Century scientifically accurate sampling procedure be utilized. Specifically, to scientifically and accurately determine the THC level of the entire plant, we would strongly advocate and recommend that the sampling procedure collect material from not only the flower, but include equal parts (by dry weight) of the leaves, stems and stalks, including both the bark (Bast) of the stalk and the pith (Hurd) of the stalk. These components from the entire hemp plant could then be homogenized (blended together) and that more accurately representative homogenized sample be used to determine the actual and much more precise THC level of the entire plant. Logically, this would be a much more scientifically accurate analysis while still utilizing the post decarboxylation methods of testing that is recommended by the Bill.
In our Research we’ve tried to determine why the .3% THC figure has been designated as the difference between Hemp and marijuana, and our research indicates that it is just an arbitrary figure with no scientific basis. It creates a confusing situation where all Hemp is cannabis, but not all cannabis is Hemp. A much easier and more common sense solution than the above would be to take all cannabis off the Schedule I Controlled Substance List as hemp has already been. This would give Producers much more freedom to prosper without all the onerous regulations and burdensome fees that Hemp is currently subject to. Even a change from the 0.3% THC level to a 1.0% THC level would ease some of the Producers’ concerns about having to destroy a crop that they have put blood sweat, tears, time and money into. Unfortunately, these percentage changes can only be made by the President or Congress but we are confident that this will happen sooner than later. The Rule states (Page 58524) that “Sampling procedures, among other requirement, must ensure that a representative sample of the hemp production is physically collected and delivered to a DEA-registered laboratory for testing”. However, related to the above, if only the flower material is tested, then only the flower material is subject to going over the 0.3% THC level. Therefore, logically, the only part of the plant that should be destroyed if the test goes over 0.3% THC is the flower material, allowing the Producer to recoup some of his time and money by utilizing the remaining undestroyed, untested segments of the plant. A viable alternative that would not require and change in test sampling or THC % levels is that, using 21st century technology, the Authorized person (DEA reverse distributor) charged with overseeing the corrective action of the non-compliant crop could be Authorized to oversee the digitally tracked channeling of that crop into an approved processing facility that would transform that crop into a non-ingestible product like hempcrete, fiberboard, paper, or numerous other non-ingestible products. Alternatively, utilizing 21st Century technology, as an alternative corrective action, the THC could be extracted from the flower material before it goes into the open market. Since the THC level is the only aspect of the plant that is not compliant, then the THC could be extracted and destroyed using 21st Century Technology without destroying the value of the rest of the plant for the Producers. The Producers would thus not be out their whole investment and may even realized a modest return to offset their expenses, but would not benefit from the THC portion of the plants. The suicide and bankruptcy rates of Farmers in America (Producers) are at an all time high and we certainly don’t want exacerbate those rates with over-regulation in the revival of a once important crop that was crucial in helping the US win WWII in the “Hemp For Victory” Campaign. These alternative considerations for corrective action are absolutely necessary and critical in assuring that the revival of the US Hemp Industry is given every possible chance to succeed. Utilizing these actions could also significantly defray the projected annual cost of $6.432 million for the disposal of non-compliant crop disposal and would add more positive benefit to the Producers and the country. This is also compliant with Executive Order 13563 to “select regulatory approaches that maximize net benefits, which include potential economic, environmental, public health and safety, effect distributive impacts, and equity” (Page 58539). Although the “AMS adopted the best option among the alternatives” (Page 58548) for sampling procedures, it is very possible and probable that they did not consider all of the alternatives including the ones presented above.
Because the Rule (Page 58524) requests comments and information regarding the 15-Day sampling and harvest timeline we are offering the following comments. Not only is this protocol unrealistic from the Producer’s perspective, there are too many significant extraneous variables and conflicts to pinpoint an exact harvesting timeline to this level of specificity. Some of these variables are unpredictable weather, optimum maturity of the crop, availability of harvesting equipment and personnel. There is also a huge difference between procedures for successful harvesting Hemp to be used in CBD products and procedures for successfully harvesting Hemp to be used in whole plant processing. CBD products have been shown to have positive uses, but we feel that whole plant processing is the realistic future of the Hemp Industry because all parts of the Hemp plant have value, not just the flower material. The growing protocols for CBD production and whole plant processing are vastly different. The protocol for growing CBD crops involves only using feminized seed or clones or, alternatively, the male plants uprooted to prevent pollination. The reason for this is that Pollination decreases the cannabinoids in the plant and CBD producers want to maximize their CBD production. These plants are planted at about one plant every three feet and are bushy short plants that do not decorticate well. For whole plant processing, our recommended protocol for growing Agriculturally Cultivated Industrial Hemp is that seeds are planted at a rate of 75-90 plant per square yard. This planting method crowds out weeds, requires less herbicides, and forces the plant to grow straight and tall (for optimum decortication) and produces the majority of seed and flower at the top of the plant. For CBD Harvesting when the flower material is harvested, the stalks often go to waste and the plants are not allowed to produce seed. For whole plant processing, the seeds, residual flower, and stalks (decorticated into the Bast and the Hurd) are all valuable raw materials that are the basis for the thousands of products that can be produced from Hemp. Harvesting for these whole plant materials is really a two step process where, when the seeds are at their optimum maturity and dryness, the seeds and residual flower are harvested and taken to the processing facility for sorting and separating, leaving the erect stalks in the field to additionally dry out and not get moldy for optimum decortication. When (weeks or months later) the stalks are sufficiently dry, a different harvesting machine is used to cut them and then they are transported to the processing facility for decortication into the Bast and the Hurd. Thus, when harvesting for whole plant processing, there is really two harvesting periods which can occur months apart. How does this two-part harvesting procedure fit into the directive of having to sample within 15 days of harvest? In reality, we have a Preliminary Harvest for seed (which has virtually no THC) and residual flower (which has lower THC levels due to pollination) and a Main (final) Harvest for the higher tonnage stalks. To comply with this Rule as written for testing purposes, we would advise our Producers to submit the date of the main Harvest to comply with the Rule, as this is when we would be harvesting the bulk of the crop with the most THC due to the much larger biomass involved.
There were over 90 million acres of corn grown in the United States last year, but only 78,000 acres of hemp. To facilitate Hemp Acreage to grow into the commodity levels of corn and other major crops, it is crucial that Hemp be allowed to be grown from seed to seed, fully mechanized from seed to sale, and include whole plant processing with the two-step harvesting protocol we have outlined above. Any regulations that hinder this process are not in line with the IFR’s good cause in carrying out ” … the Public’s interest in expediting the ability of the nation’s farmers to enter the new agricultural market presented by Hemp” ( Good Cause Analysis page 58554). This restrictive rule as written will have a negative effect on the current and future innovation in the areas of industrial Hemp usage. This will produce a negative effect on Rural Communities who have the most potential to Benefit from successful Hemp cultivation including processing, manufacturing, and retail sales which in the end produces true trickle-down economics. This is acknowledged in the Introduction to the Rule as “Hemp is a commodity that can be used for numerous industrial and horticultural purposes including fabric, paper, construction materials, food products, cosmetics, production of cannabinoids (such as cannabidiol or CBD) and other products” (Page 58522). Since Hemp, as defined in the 2018 Farm Bill is no longer a controlled substance, the utilization of homogenized sample testing is virtually mandated to be the prevailing and preferred testing protocol.
Other concerns regarding the 15-Day sampling protocol is that there is a great possibility there are currently not enough trained and certified personnel to effectuate a smooth harvest in a timely manner as the harvesting of the vast majority of the Hemp crops will occur within a very short time period. Another alternative that should be considered is to sample after 60 days of planting which will also give the samplers more flexibility in their whole plant sampling schedule and avoid the rush as harvesting time. In addition we are concerned that there are not enough DEA certified labs to test the samples in a timely manner. In searching the DEA’s website we could find no listing of the number and location of DEA Certified Testing Labs. As above, this is probably not compliant with Executive Order 13563 to “select regulatory approaches that maximize net benefits, which include potential economic, environmental, public health and safety, effect distributive impacts, and equity” (Page 58539).
Also in regard to testing, the USDA is seeking comment on a testing lab approval as to whether or not to incorporate it into the subsequent final rule (Page 28525). Because “USDA is considering establishing a fee-for-service hemp laboratory approval process for labs that wish to offer THC testing services” (Page 58525), we would welcome more labs for testing. We would also strongly recommend that the fee for testing be very reasonable and not more than $25-50 per test as they currently are in Colorado. The more reasonable the Fee, the higher the likelihood that Producers will test more often to assure that they are remaining in compliance with the rule. In a lot of rural areas there are a lack of testing facilities and so we would welcome an increase in the number of USDA/DEA approved Labs to ease the burden of having to transport material long distances to be tested. Because the USDA is also requesting comment in regard to ISO 17025 accreditation (Page 58525), we would offer that the more accurate the testing is, the better it is for everyone. As long as this additional requirement doesn’t increase the fees beyond a reasonable level, we would accept that laboratories testing hemp should also have ISO 17025 accreditation if the USDA feels this is important.
In regard to The Farm Service Agency collecting information on crop acreage through the “Report of Acreage” form (Page 58547 and §990.7 Page 58559), we feel that this is an additional burden on the Producers. The State, Tribal Agencies and the USDA already have this information in regard to Hemp production and this information can be easily shared electronically with the FSA by the State Agencies, Tribal Agencies and the USDA. This is also in alignment with the Paper Reduction Act.
We respectfully request that in consideration of all of the comments above §990.24 (Page 58560) be amended to read:
“(a) At approximately 60 days post planting, a producer shall have an approved Federal, State, local law enforcement agency or other USDA designated person collect samples from the entire plant including flower material, leaves, stems and stalk of equal dry weight, and these equal samples be homogenized (blended together) for delta-9 tetrahydrocannabinol concentration level testing.”
Our last comment references your reasoning as to why hemp went out of favor in the 1930s (Page 58522 et al). Your statements are marginally true, but do not do justice to the real truth. Any student of Hemp knows that hemp was intentionally included in the same legislation that made marijuana illegal because Industrial Hemp was a threat to other industries controlled by the business magnates of the time. These included the oil holdings of John D. Rockefeller, the forest and paper industries of William Randolph Hearst, and the lucrative financial schemes of DuPont’s synthetic nylon and DuPont’s chief financial backer, Andrew Mellon of the Mellon Bank of Pittsburgh. This was done in conjunction with the “Reefer Madness” campaign promulgated by the first Commissioner of the Federal Bureau of Narcotics, Harry Anslinger. Mellon, who was Secretary of the Treasury and Anslinger’s Uncle In-Law, designed Harry Anslinger’s position to help eliminate Hemp’s as a primary competitor to DuPont’s new synthetic fiber, nylon. We only bring this up because the whole truth should be told regarding the real reasons that Hemp was made illegal and this should be correctly noted in the Federal Register. In addition, the cotton gin was invented in the 18th Century and according to your rational, all of a sudden it eased the harvesting of cotton in the 20th century (Page 58522 et al). The cotton gin is not used for harvesting, it is use for processing the harvested cotton and Hemp was a threat to this industry as well. We only mention this because Hemp has been demonized for long enough and we just want you to paint a more accurate picture of the unconscionable conspiracy to wipe out the competition to these other industries. These are the real reasons Hemp was made illegal in the first place, which was a travesty of justice. Fortunately we have slowly overcome this manufactured bias and we now have the opportunity to utilize this versatile plant for the good of all Earth Citizens. This can be effected as long as these regulations are based on facts and common sense in order to promote the cultivation of Hemp in such a way as to not be in contradiction with Executive Order 13563 to “select regulatory approaches that maximize net benefits, which include potential economic, environmental, public health and safety, effect distributive impacts, and equity” (Page 58539).
We want to Thank You again for allowing us to submit these comments and would like to iterate that we are working diligently to collaborate and co-create the revival of the Hemp Industry onto one that is fully compliant and produces the greatest and Highest Good for all participants and especially for all US Citizens. We Thank you for Supporting all our efforts in your consideration of all of the above. We also hope that you will make decisions to change the current IFR with regard to our comments, and that any changes made to the IFR will also include those that benefit the Greatest and Highest Good for all US Citizens.
Thank You for Your Consideration of Our Comments!
Co-Founder and Operator
Colorado Hemp Processing Cooperative
713 Cimarron Ave.
La Junta, CO 81050
Additional Comments on the Establishment of a Domestic Hemp Production Program
AGENCY: Agricultural Marketing Service USDA
ACTION: Interim final rule with request for comments.
Please Note: Page Numbers reference the Federal Register
Thank you again USDA for your efforts in formulating the IFR and allowing us to make comments. We have previously made comments on this issue with Comment Tracking Number: 1k3-9dbc-34z8. Please consider the comments below as additional comments on the IFR.
We the People would again like to remind all those involved and working in government at all levels, including Government Employees, Elected Officials and Government Contractors, that you are not paid by special interests, lobbyists, campaign contributors, and specific political parties, but by the taxes of all hard working US Citizens and you need to be attentively responsive to all of our concerns.
For reference and clarification our first comments require “A Legal Status of US Cannabis/Hemp History Review”. We have posted this review at the end of these comments. We have cited the review below as a courtesy to remind you that hemp stalks and sterile seeds are exempt from Schedule I restrictions, just as they have been since 1937. Thus, the DEA has absolutely no statutory jurisdiction regarding the handling of stalk and sterile seeds. It is a blatant violation of Producer’s Rights by the DEA to mandate that Producers have to destroy their entire crop because the flower material tested over .3% THC. We are hereby putting you on notice that we will defend these Statutory Rights with every legal mechanism available if these exemptions are not included in the IFR. In addition, the language for the destruction of entire crops must be eliminated from the IFR to be compliant with current US statutes and Internal DEA Directives. The Legal recourses available to us if this is not changed in the IFR include redress of grievances and financial compensation for all Producers who were illegally mandated by the DEA to destroy their entire crops since the 2014 Farm Bill. We demand that these regulations be based on facts and common sense in order to promote the cultivation of Hemp in such a way as to not be in contradiction with Executive Order #13563 to “select regulatory approaches that maximize net benefits, which include potential economic, environmental, public health and safety, effect distributive impacts, and equity” (Page 58539).
It is pretty ridiculous that we are even having to have this discussion as Medical and Recreational cannabis Producers right down the country road can legally grow high THC cannabis (often over 20% THC) while we are discussing tenths of percentages of THC for hemp. Even at a level of 5 times the .3% directive, hemp at 1.5% THC would get no one high unless they decided to make a rope out of it and climb a tree. Even at the highest levels of THC, cannabis has never killed anyone so what exactly are these onerous DEA regulations protecting us from? Hemp is one of the few plants on our planet that can provide food, shelter, clothing, natural medicine and fuel. Why are there such draconian regulations regarding this versatile plant unless its production is an economic threat to big corporations’ hidden agendas, just like when it was effectively made illegal in 1937. Yes, every substance can be abused. You can commit suicide with water, but we are certainly not going to make water illegal because of its potential for abuse. We need to focus on the positive and practical uses of the hemp plant and not its artificially manufactured, hypothetical, governmental, and “Reefer Madness” detriments. With this in mind we respectfully request that testing procedures must be amended in the IFR as we proposed in our prior comments. To iterate a summary of our previous comments, “since Hemp, as defined in the 2018 Farm Bill, is no longer a controlled substance, the utilization of homogenized sample testing is virtually mandated to be the prevailing and preferred testing protocol”. As outlined in our review below, because the stalks and sterile seeds are exempt from Schedule I prohibitions, they can never be legally mandated to be destroyed. And, as we have stated in our previous comments, there are 21st century options to assure that the THC in any “hot” hemp can be extracted and isolated, or, alternatively, material tracking of the harvested crop can be instituted so the plants can only be utilized for non-ingestible uses at approved whole plant processing facilities.
This correlates with our next comments regarding hemp use as animal feed. We have scoured the available literature and find that there are no significant detrimental effects from feeding hemp to animals. Animals, like humans, have an endocannabinoid system (ECS). The ECS is the natural, balanced condition that optimally supports life. When CBD interacts with the ECS, it further reinforces the proper balancing functions within the body and its major systems. (Source: https://www.holistapet.com/potential-side-effects-of-cbd-for-dogs-and-cats/)
The process for adding substances to the approved substances list of the Association of American Feed Control Officials (AAFCO) is very onerous and burdensome and to get hemp on this list will take years as well as substantial funding for all the necessary approved trials for all species of animals. Our question is, because of the centuries of history of the hemp plant being safely used as animal feed and the positive benefits seen from the use of hemp as animal food by people currently doing it around the world, why is hemp even on this list? From all available sources we have looked into, prior to the 1937 Marihuana Tax Act hemp was an unregulated animal food. Because of expediency due to the current high suicide and bankruptcy crisis of American Producers, we are compelled to affirm that we will advise our producers that it is, in our opinion, permissible to feed hemp to animals as there is absolutely no scientific data to prove that it causes significant harm. The government has not shown any valid reasons why it is prohibited, and in fact, the government cannot show this because there are no compelling or scientifically proven justifications to show that it is detrimental throughout recorded animal consumption history. We have no good reason to go through the expensive process of proving that hemp is safe as animal fodder if this exemption is not included in the Final Rules. It is incumbent on the USDA, the FDA, and the DEA, not citizens, to prove it is harmful to animals. There are no reasonable scientific justifications for keeping hemp off the list and it should be added to the approved Animal Food Lists immediately. Hemp seed is already approved for humans, and its consumption has never caused any harm and in fact shows many benefits. So, why is it not okay for animals? We would easily win this case in an impartial and rational court of law because the government has absolutely no compelling evidence to prove otherwise. The fact that hemp is not on the approved animal food list is an illegal, blatant, unjustified restraint of trade and is in contradiction with Executive Order #13563 to “select regulatory approaches that maximize net benefits, which include potential economic, environmental, public health and safety, effect distributive impacts, and equity” (Page 58539).
As per the history research below, sterile hemp seeds, like stalks, have never been on CSAs Schedule I list. However, the seeds cannot be sterilized until they are harvested so they must be allowed to reach full fruition and proper moisture content for harvesting to minimize the negative effects of mold and other pathogens, and also to attain maximum nutritional and industrial value. The timing of when harvest needs to occur is highly variable and dependent on a number of extraneous variables like temperature, precipitation, growth period, amount of sunlight, humidity, etc. To enact the IFRs with proper changes, we must have the assurance that the harvest of mature seeds is preformed at the most optimum time and is not highly compromised by erroneous, egregious, burdensome and unnecessary pre-testing regulations.
Hemp, like all American Citizens, must be presumed to be innocent until proven guilty. It is the burden of government to prove this guilt, not the unjustified governmentally manufactured onerous encumbrance of US Citizens to prove its innocence. We would like to believe that the USDA, the FDA, the DEA, and all other government agencies want every US Hemp Producer to be successful. Our hope is that your actions in modifying and approving the IFRs don’t impel us to resort to any drastic Legal and Jurisdictional actions as we’ve outlined above. That path does not quickly move the Hemp Industry forward. Our overriding mantra is collaboration in making the US Hemp Industry the best it can be, and by incorporating these necessary and vital changes to the IFR before they become the Final Rules, the governmental agencies involved will demonstrate the good faith and pragmatism of all government agencies in aligning with We the People’s collective and collaborative goals in promoting the success of Industrial Hemp.
Thank you again for allowing us to comment and we pray that you take these comments to Heart for the Greatest and Highest Good!
Co-Founder and Operator
Colorado Hemp Processing Cooperative
713 Cimarron Ave.
La Junta, CO 81050
A Legal Status of US Cannabis/Hemp History Review:
When “Marihuana” was first “taxed” by the “Marihuana Tax Act of 1937 ” the definition of “marihuana” was listed in Chapter II, Section 1 (b) and read: “The term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivatives, mixture, or preparation of such plant, its seeds or resins; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.” (Source: http://www.druglibrary.org/schaffer/hemp/taxact/mjtaxact.htm)
In 1969, Leary v. United States, 395 U.S. 6, a court case was filed against Timothy Leary, a professor and activist for the possession of marijuana in violation of the Marihuana Tax Act. Leary challenged the act on the ground that the act require self-incrimination with violated the Fifth Amendment. The unanimous opinion of the court was penned by Justice John Marshall Harlan II and declared the Marihuana Tax Act unconstitutional. Congress responded shortly thereafter by replacing the Marihuana Tax Act with the newly written Controlled Substances Act (CSA) while continuing the prohibition of certain drugs, including marijuana, in the United States. (Source: https://en.wikipedia.org/wiki/Leary_v._United_States)
The Controlled Substances Act placed all substances which were in some manner regulated under existing Federal Law into one of five schedules. This placement is based upon the substance’s medical use, potential for abuse, and safety or dependence liability. In determining into which schedule a drug or other substance should be placed, or whether a substance should be decontrolled or rescheduled, certain factors are required to be considered. These factors are listed in Section 201 (c), [21 U.S.C. § 811 (c) of the CSA as follows:
Its actual or relative potential for abuse.
(2) Scientific evidence of its pharmacological effect, if known.
(3) The state of current scientific knowledge regarding the drug or other substance.
(4) Its history and current pattern of abuse.
(5) The scope, duration, and significance of abuse.
(6) What, if any, risk there is to the public health.
(7) Its psychic or physiological dependence liability.
(8) Whether the substance is an immediate precursor of a substance already controlled under this subchapter. (Source: https://www.dea.gov/controlled-substances-act)
Federal policies, tightened by the Controlled Substances Act of 1970, virtually banned the production of industrial hemp during the war on drugs. According to an industry group, “the 1970 Act abolished the taxation approach [of the 1937 Marijuana Tax Act] and effectively made all cannabis cultivation illegal”. The Drug Enforcement Administration (DEA) refused to issue permits for legal hemp cultivation and held that, since industrial hemp is from the same species plant as prohibited cannabis (despite its being of lower THC yield), both were prohibited under the Controlled Substances Act. In the words of a 2015 PBS NewsHour segment on hemp, “[t]o the federal government, hemp is just as illegal as marijuana”, and according to Newsweek, “all cannabis sativa—whether grown to ease chronic pain, get stoned or make rope—is a schedule I controlled substance“. Agricultural hemp was allowed on an experimental basis by federal law under the Agricultural Act of 2014 (farm bill). Under the 2018 United States farm bill, commodity hemp production was federally legalized.
In 2004, the U.S. Court of Appeals for the Ninth Circuit enjoined DEA from enforcing certain regulations with respect to tetrahydrocannabinols (THC). See Hemp Industries Ass’n v. DEA, 357 F.3d 1012 (9th Cir. 2004). The government did not seek Supreme Court review of that decision. In response to various inquiries, DEA thereby issued to DEA personnel the following internal directive on how to carry out their duties in light of the Ninth Circuit’s decision. “The Ninth Circuit enjoined enforcement of what is now 21 C.F.R. § 1308.11(d)(31) (drug code 7370) with respect to products that are excluded from the definition of marijuana in the Controlled Substances Act (CSA). DEA thus does not enforce that provision as to such products. Consistent with the Ninth Circuit’s decision, DEA does not enforce 21 C.F.R. § 1308.35. Products and materials that are made from the cannabis plant and which fall outside the CSA definition of marijuana (such as sterilized seeds, oil or cake made from the seeds, and mature stalks) are not controlled under the CSA. Such products may accordingly be sold and otherwise distributed throughout the United States without restriction under the CSA or its implementing regulations. The mere presence of cannabinoids is not itself dispositive as to whether a substance is within the scope of the CSA; the dispositive question is whether the substance falls within the CSA definition of marijuana.”
In the Title 21 Code of Federal Regulations, Part 1308 – Schedules of Controlled Substances there is a list of exempt cannabis plant material, and products made therefrom that contain tetrahydrocannabinols. It reads as follows:
§1308.35 Exemption of certain cannabis plant material, and products made therefrom, that contain tetrahydrocannabinols.
(a) Any processed plant material or animal feed mixture containing any amount of tetrahydrocannabinols (THC) that is both:
(1) Made from any portion of a plant of the genus Cannabis excluded from the definition of marijuana under the Act [i.e., the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination] and (2) Not used, or intended for use, for human consumption, has been exempted by the Administrator from the application of the Act and this chapter.
(b) As used in this section, the following terms shall have the meanings specified:
(1) The term processed plant material means cannabis plant material that has been subject to industrial processes, or mixed with other ingredients, such that it cannot readily be converted into any form that can be used for human consumption.
(2) The term animal feed mixture means sterilized cannabis seeds mixed with other ingredients (not derived from the cannabis plant) in a formulation that is designed, marketed, and distributed for animal consumption (and not for human consumption).
(3) The term used for human consumption means either:
(i) Ingested orally or (ii) Applied by any means such that THC enters the human body.
(4) The term intended for use for human consumption means any of the following:
(i) Designed by the manufacturer for human consumption; (ii) Marketed for human consumption; or (iii) Distributed, exported, or imported, with the intent that it be used for human consumption.