In the midst of national political drama in the past several weeks, you may not have noticed proposed federal legislation introduced last month by Kentucky Senator Rand Paul. The legislation is intended to help industrial hemp farmers in their efforts to comply with laws distinguishing industrial hemp, which is legal at the federal level, from cannabis plants containing excessive THC, and which therefore remain illegal at the federal level.
The 2018 Farm Bill effectively legalized industrial hemp by delisting cannabis plants testing below 0.3% THC from the definition of “marihuana” within the Controlled Substances Act. However, the low 0.3% THC threshold carries its own set of concerns. Farmers face the potential of forced destruction of their crops if some plants, even unintentionally, test above the threshold.
In addition to the financial risk of a harvest’s forced destruction for a so-called “hot” test, farmers also face at least theoretical uncertainty about whether an authority might seek to hold them criminally responsible for a harvest that inadvertently exceeds the 0.3% threshold; after all, such plants still fall within the technical definition of marijuana. These concerns are amplified by the fact that farmers have indicated THC content of hemp plants is significantly impacted by environmental factors beyond their control.
The Hemp Economic Mobilization Plan (HEMP) Act, introduced on December 15, 2020, seeks to address these and other concerns faced by industrial hemp farmers so that they can proceed with greater confidence that their harvests will be deemed legal. More specifically, the HEMP Act would:
- Amend the definition of hemp from cannabis plants below 0.3% to plants below 1% THC.
- Require the testing of THC levels to be conducted on hemp-derived products instead of the hemp flower itself, which could ease the burden on farmers because they have greater control over the THC content at this later stage. Additionally, this aspect of the proposed legislation is intended to address concerns that the current 15-day time frame for harvesting and testing hemp’s THC content is too short.
- Require the inclusion of a seed certificate copy when transporting from farms to processing facilities in order to certify that hemp was grown from seed containing 1% THC seed. This provision is intended to help farmers by addressing an issue whereby law enforcement was seizing hemp because they mistakenly believed it to be marijuana.
- Define a set margin of error for hemp THC testing, thereby giving farmers additional certainty about the parameters which apply to the tests.
It will be interesting to see how the incoming Senate class reacts to HEMP Act. The potential for sufficient bipartisan support for hemp farmers in a 50-50 senate is promising.