By: Peggy Kirk Hall, Thursday, January 18th, 2018
Written by Ellen Essman, Sr. Research Assoc., Agricultural & Resource Law Program
We often receive questions about the status of industrial hemp as an agricultural crop in Ohio. Historically, growing industrial hemp has been controversial in the United States because of its close relationship to the marijuana plant—both are members of the same species. Plants used for industrial hemp, however, have a much lower amount of tetrahydrocannabinol (THC) than marijuana and do not have the intoxicating qualities of marijuana plants. Uses for industrial hemp are numerous; ranging from fabrics, to car parts, to bedding for animals. Because of potential usefulness, Congress authorized the growing of industrial hemp in individual states for “purposes of research” in the 2014 Farm Bill.
The 2014 Farm Bill and industrial hemp
The 2014 Farm Bill included a section codified at 7 U.S.C. § 5940 that allows industrial hemp to be grown under certain circumstances. Specifically, industrial hemp can be grown in a state if:
- It is grown for research purposes;
- The research is conducted under an agricultural pilot program or other agricultural or academic research; and
- State law permits the growth of industrial hemp.
The federal law only permits hemp to be grown, cultivated, studied, and marketed under the guidance of institutions of higher education located in the state or the state department of agriculture. Furthermore, the state must certify and register the sites permitted to grow industrial hemp because any substance containing THC is a Schedule I controlled substance under 21 U.S.C. § 812 (c). This means that without a license issued by a state that allows industrial hemp to be grown for research, someone in possession of the plant would be violating federal drug law.
It is also important to note that under the federal law, “industrial hemp” is defined as the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a THC concentration of not more than 0.3 percent on a dry weight basis. Any concentration over that amount is not legal. Even those plants with a THC concentration less than or equal to 0.3 percent are illegal unless the grower has a state license.
State action on industrial hemp research
Since the passage of the 2014 Farm Bill, 26 states have implemented legislation allowing industrial hemp research or pilot programs. Ohio is not one of these states, but all of the states bordering Ohio have passed laws allowing industrial hemp research. The National Conference of State Legislatures provides a compilation of the state laws here.
Kentucky is an example of a state that is carrying out an industrial hemp pilot program. The program, codified in the Kentucky Revised Statutes §§ 260.850-260.869, allows universities, the state department of agriculture, and those who hold a license from the department of agriculture “to study methods of cultivating, processing, or marketing industrial hemp.” In order to obtain a license, a person must give the Kentucky Department of Agriculture both the legal description and the GPS coordinates of the area where they will grow industrial hemp. Furthermore, applicants for licenses must agree in writing to allow the State to enter the premises for inspection, and receive a yearly background check. Any convicted felon or person with a “drug-related misdemeanor” is barred from becoming licensed.
By implementing this industrial hemp program under state law, Kentucky has stated that it intends to be at the “forefront” of the industry. The state hopes to be in a position to profit from industrial hemp if and when the federal government removes the restrictions on growing and selling industrial hemp. Information from the Kentucky Department of Agriculture is here and here.
Will the U.S. soon allow hemp to be legally grown as a crop? A bill introduced in the U.S. House of Representatives last July, H.R. 3530, calls for industrial hemp to be removed from the federal definition of marijuana, which would in turn remove it from the list of illegal controlled substances. A quick search on Congress’ website reveals that similar bills have been introduced many times in the past but have not garnered sufficient support. The possibility that the current proposal will gain enough traction to pass is therefore slim. But it is possible that continued research could prove the value of industrial hemp as an agricultural crop, which could eventually lead to less regulation in the future. Given Ohio’s lack of legislative interest in allowing industrial hemp research, Ohio farmers may be at a disadvantage if that day arrives.
For more information
Our colleague Harrison Pittman, Director of the National Agricultural Law Center, presented a webinar on industrial hemp and it’s recorded here. A Congressional Research Service report on “Hemp as an Agricultural Commodity” is available here. A recent article on hemp by Farm and Dairy is available here.