The Farm Bill, hemp legalization and the status of CBD: An explainer
This week, Congress agreed to the final version of the 2018 Farm Bill, and President Trump is expected to sign the legislation within days. But this is not your typical farm bill. While it provides important agricultural and nutritional policy extensions for five years, the most interesting changes involve the cannabis plant. Typically, cannabis is not part of the conversation around farm subsidies, nutritional assistance, and crop insurance. Yet, this year, Senate Majority Leader Mitch McConnell’s strong support of and leadership on the issue of hemp has thrust the cannabis plant into the limelight.
For a little bit of background, hemp is defined in the legislation as the cannabis plant (yes, the same one that produces marijuana) with one key difference: hemp cannot contain more than 0.3 percent of THC (the compound in the plant most commonly associated with getting a person high). In short, hemp can’t get you high. For decades, federal law did not differentiate hemp from other cannabis plants, all of which were effectively made illegal in 1937 under the Marihuana Tax Act and formally made illegal in 1970 under the Controlled Substances Act—the latter banned cannabis of any kind.
It’s true that hemp policy in the United States has been drastically transformed by this new legislation. However, there remain some misconceptions about what, exactly, this policy change does.
Hemp is legal in the United States—with serious restrictions
The allowed pilot programs to study hemp (often labeled “industrial hemp”) that were approved by both the U.S. Department of Agriculture (USDA) and state departments of agriculture. This allowed small-scale expansion of hemp cultivation for limited purposes. The 2018 Farm Bill is more expansive. It allows hemp cultivation broadly, not simply pilot programs for studying market interest in hemp-derived products. It explicitly allows the transfer of hemp-derived products across state lines for commercial or other purposes. It also puts no restrictions on the sale, transport, or possession of hemp-derived products, so long as those items are produced in a manner consistent with the law.
However, the new Farm Bill does not create a completely free system in which individuals or businesses can grow hemp whenever and wherever they want. There are numerous restrictions.
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First, as noted above, hemp cannot contain more than 0.3 percent THC, per section 10113 of the Farm Bill. Any cannabis plant that contains more than 0.3 percent THC would be considered non-hemp cannabis—or marijuana—under federal law and would thus face no legal protection under this new legislation.
Second, there will be significant, shared state-federal regulatory power over hemp cultivation and production. Under section 10113 of the Farm Bill, state departments of agriculture must consult with the state’s governor and chief law enforcement officer to devise a plan that must be submitted to the Secretary of USDA. A state’s plan to license and regulate hemp can only commence once the Secretary of USDA approves that state’s plan. In states opting not to devise a hemp regulatory program, USDA will construct a regulatory program under which hemp cultivators in those states must apply for licenses and comply with a federally-run program. This system of shared regulatory programming is similar to options states had in other policy areas such as health insurance marketplaces under ACA, or workplace safety plans under OSHA—both of which had federally-run systems for states opting not to set up their own systems.
Third, the law outlines actions that are considered violations of federal hemp law (including such activities as cultivating without a license or producing cannabis with more than 0.3 percent THC). The law details possible punishments for such violations, pathways for violators to become compliant, and even which activities qualify as felonies under the law, such as repeated offenses.
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Ultimately, the Farm Bill legalizes hemp, but it doesn’t create a system in which people can grow it as freely as they can grow tomatoes or basil. This will be a highly regulated crop in the United States for both personal and industrial production.
Hemp research remains important
One of the goals of the 2014 Farm Bill was to generate and protect research into hemp. The 2018 Farm Bill continues this effort. Section 7605 re-extends the protections for hemp research and the conditions under which such research can and should be conducted. Further, section 7501 of the Farm Bill extends hemp research by including hemp under the Critical Agricultural Materials Act. This provision recognizes the importance, diversity, and opportunity of the plant and the products that can be derived from it, but also recognizes an important point: there is a still a lot to learn about hemp and its products from commercial and market perspectives. Yes, farmers—legal and illegal—already know a lot about this plant, but more can and should be done to make sure that hemp as an agricultural commodity remains stable.
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Hemp farmers are treated like other farmers
Under the 2018 Farm Bill hemp is treated like other agricultural commodities in many ways. This is an important point. While there are provisions that heavily regulate hemp, and concerns exist among law enforcement—rightly or wrongly—that cannabis plants used to derive marijuana will be comingled with hemp plants, this legislation makes hemp a mainstream crop. Several provisions of the Farm Bill include changes to existing provisions of agricultural law to include hemp. One of the most important provisions from the perspective of hemp farmers lies in section 11101. This section includes hemp farmers’ protections under the Federal Crop Insurance Act. This will assist farmers who, in the normal course of agricultural production, face crop termination (crop losses). As the climate changes and as farmers get used to growing this “new” product, these protections will be important.
Cannabidiol or CBD is made legal—under specific circumstances
One big myth that exists about the Farm Bill is that cannabidiol (CBD)—a non-intoxicating compound found in cannabis—is legalized. It is true that section 12619 of the Farm Bill removes hemp-derived products from its Schedule I status under the Controlled Substances Act, but the legislation does not legalize CBD generally. As I have noted elsewhere on this blog CBD generally remains a Schedule I substance under federal law. The Farm Bill—and an unrelated, recent action by the Department of Justice—creates exceptions to this Schedule I status in certain situations. The Farm Bill ensures that any cannabinoid—a set of chemical compounds found in the cannabis plant—that is derived from hemp will be legal, if and only if that hemp is produced in a manner consistent with the Farm Bill, associated federal regulations, association state regulations, and by a licensed grower. All other cannabinoids, produced in any other setting, remain a Schedule I substance under federal law and are thus illegal. (The one exception is pharmaceutical-grade CBD products that have been approved by FDA, which currently includes one drug: GW Pharmaceutical’s Epidiolex.)
There is one additional gray area of research moving forward. Under current law, any cannabis-based research conducted in the United States must use research-grade cannabis from the nation’s sole provider of the product: the Marijuana Program at the University of Mississippi School of Pharmacy’s National Center for Natural Products Research. That setup exists because of cannabis’s Schedule I status. However, if hemp-derived CBD is no longer listed on the federal schedules, it will raise questions among medical and scientific researchers studying CBD products and their effects, as to whether they are required to get their products from Mississippi. This will likely require additional guidance from FDA (the Food and Drug Administration who oversees drug trials), DEA (the Drug Enforcement Administration who mandates that research-grade cannabis be sourced from Mississippi), and NIDA (National Institute on Drug Abuse who administers the contract to cultivate research-grade cannabis) to help ensure researchers do not inadvertently operate out of compliance.
State-legal cannabis programs are still illegal under federal law
The Farm Bill has no effect on state-legal cannabis programs. Over the past 22 years, 33 states have legalized cannabis for medical purposes, and over the past six years, 10 states have legalized cannabis for adult use. Every one of those programs is illegal under federal law, with no exceptions, and the Farm Bill does nothing to change that. That said, many in the advocacy community hope that the reforms to hemp policy under the Farm Bill serve as a first step toward broader cannabis reform. (Although I would argue that a soon-to-be-sworn-in Democratic House majority alongside a president with a record of pro-cannabis reform rhetoric is the more likely foundation for broader cannabis reform.)
Even CBD products produced by state-legal, medical, or adult-use cannabis programs are illegal products under federal law, both within states and across state lines. This legal reality is an important distinction for consumer protection. There are numerous myths about the legality of CBD products and their availability. Under the 2018 Farm Bill, there will be more broadly available, legal, CBD products; however, this does not mean that all CBD products are legal moving forward. Knowing your producer and whether they are legal and legitimate will be an important part of consumer research in a post-2018 Farm Bill world.
Mitch McConnell, cannabis champion?
Many advocates applaud Leader McConnell for his stewardship of these hemp provisions into the Farm Bill and his leadership on the legislation overall. That assessment is accurate. Without Mr. McConnell’s efforts, the hemp provisions would never had found their way into the legislation initially. And although his position as Senate leader gave him tremendous institutional influence over the legislation, he went a step further by appointing himself to the conference committee that would bring the House and Senate together to agree on a final version.
McConnell understood much about this issue. First, he knows hemp doesn’t get you high and that the drug war debate that swept up hemp was politically motivated, rather than policy-oriented. Second, Kentucky—the leader’s home state—is one of the best places to cultivate hemp in the world, and pre-prohibition the state had a robust hemp sector. Third, the grassroots interest in this issue was growing in Kentucky, and McConnell knows that his role as Senate Majority Leader hangs in the balance in 2020, as does his Senate seat as he faces re-election that same year. McConnell emerges from the Farm Bill as a hemp hero, but advocates should be hesitant to label him a cannabis champion; Leader McConnell remains a staunch opponent of marijuana reform and his role in the Senate could be the roadblock of Democratic-passed legislation in the 116 th Congress.
 Under the Controlled Substances Act, all controlled drugs fall under five schedules. Schedule I has the highest level of control, designated a substance as having no safe medical use and has a high risk of abuse or misuse. Schedule I substances are illegal under the law.
Is It Illegal to Grow CBD Plants?
As CBD oil from industrial hemp is legal, and sellers can ship their goods to most American states, we are regularly asked: “Is it illegal to grow CBD plants?” The first thing to note is that you need to grow hemp plants because a CBD plant technically doesn’t exist. Cannabidiol, the most abundant non-intoxicating compound in marijuana, is also available in vast quantities in the hemp plant.
Therefore, the purpose of this article is to help explain whether you can legally grow hemp plants in the United States. The issue of whether CBD oil is legal in all 50 states is a rather complex one. As a consequence, one would assume it is the same story when it comes to growing hemp.
The truth is, the 2018 Farm Bill legalized the growing of industrial hemp throughout the United States on a federal level, but only commercially, and in certain circumstances. As is the case with CBD oil production and sale, local and state laws differ. In this scenario, it is a question of enforcement. In this guide, we focus on telling you the truth about the legal status of hemp and offer a few quick tips on the best growing practices.
The Farm Bill 2018 & What It Means
December 20, 2018, was a historic date for hemp lovers. On that day, President Donald Trump signed the Farm Bill, which made full-scale industrial hemp legalization official. The provisions in the program transform farming opportunities from small state pilot programs to a nationwide scale. The Bill also removes hemp from the list of controlled substances and deems it an agricultural product.
It is an expansion upon the provisions of the 2014 version of the bill (the Agriculture Act). That particular piece of legislation “created a framework for the legal cultivation by states of ‘industrial hemp’” without a DEA permit. The result was the successful growing of hemp plants across the nation, albeit on a limited scale.
Those in need of a CBD-rich cannabis strain are out of luck unless they live in a state where marijuana has been legalized recreationally.
Alternatively, you can cultivate high-CBD marijuana in a state with a medical cannabis program if you have a valid MMJ card, and are also allowed to grow the herb. Otherwise, you are only permitted to grow industrial hemp if you need CBD.
So, Can I Grow Hemp at Home?
Unfortunately, there is more than a little confusion. As part of the 2018 Farm Bill, hemp is no longer a Schedule I controlled substance if it has a THC level of 0.3% or less. Fortunately, you’ll find that naturally-grown hemp contains a low enough amount of THC to ensure its legality.
If you are a farmer looking to grow hemp commercially, you can apply for a license from your state department of agriculture. Alas, the law doesn’t contain provisions for residential growth. Therefore, if you live in a state where you are not allowed to grow marijuana at home, you can’t grow hemp either. If you live in a state such as Colorado that permits recreational users to cultivate cannabis, you can grow hemp, but it counts towards your marijuana plant allowance.
It Isn’t Easy for Farmers Either!
Hemp production is increasing rapidly in states where it is allowed. In Tennessee, for example, farmers produced 200 acres in 2017 and 3,338 acres in 2018! In Montana, only 542 acres of hemp were grown in 2017. That figure skyrocketed to 22,000 acres in the following year, before the passing of the Farm Bill! Overall U.S. hemp production hemp was over 78,000 acres in 2018, more than triple the 2017 amount.
Unfortunately, it isn’t as easy for farmers to grow industrial hemp as you might think. There is a process to go through in states that have implemented hemp cultivation and processing. In Ohio, for example, the application ‘window’ is open from November 1 to March 31 annually. You must submit detailed information, and the state’s Department of Agriculture conducts a thorough background check on each candidate.
At least the application fee of $100 is affordable, as is the annual license fee of $500. In Ohio, you may also pay fees for site modification and testing, which should not exceed $300. Ohio only released its proposed statewide regulations in October 2019 and doesn’t expect to implement the rules until January 2020 at the earliest.
It is a similar situation throughout the country. The 2018 Farm Bill requires every industrial hemp site to register with the state or federal government under a program that has inspection and testing requirements.
In Kentucky, for example, you must sign a memorandum of understanding with the state’s Department of Agriculture (KDA). In it, you consent to allow the agency to enter the site and carry out inspections. The state is permitted to decertify or deregister any site. Also, producers must inform the Department of any discussions relating to the sale of hemp products.
Which States Have Legal Hemp Farming?
In the map above, you can see that not every state has fully legalized hemp farming. It is from September 2019 and doesn’t include New Hampshire, which technically allows the commercial growth of hemp. HB 459 made the provision but stated that growers, processors, or traders need USDA licensing. At that time, the USDA had not made an announcement, but that has changed recently.
The three states with no program at present are Idaho, South Dakota, and Mississippi. The latter is likely to allow hemp growth by next year. In several of the states which will enable hemp growth, quite a few are not yet implemented. In Nebraska, for instance, the state Department of Agriculture said that it is looking forward to the USDA providing federal guidelines to ensure the success of a full program from 2020 onward.
Finally! Change Is in the Air!
In late October 2019, officials from the United States Department of Agriculture (USDA) announced the agency’s plans to finalize a rule to allow farmers to grow hemp legally. As you have already read, farmers in numerous states have waited for almost a year for this news. The interim rule will enable widespread hemp cultivation in the U.S.
The USDA posted formal guidelines for how hemp is grown, harvested, tested, processed, transported, and sold. It also established the United States Domestic Hemp Production Program to regulate the marijuana plant. The new program says that Native American tribes and states must submit any hemp production plans that meet or exceed the department’s guidelines. If a state or tribe doesn’t present a proposal, federal guidelines apply.
According to Anita Sabine, an attorney who represents weed, hemp, and CBD firms in Los Angeles, the new guidelines will reduce the cost of operation and compliance for farmers and hemp companies. One exciting part of the USDA plans stipulate that states can’t prohibit the interstate transport of hemp. In many ways, the new standards help address a few loose ends from the 2018 Farm Bill. Read more on the Federal Register website.
How Can I Grow High-CBD Plants If I Don’t Have a Permit?
Whether you are a farmer in a state where there is no existing hemp program, or else you want to grow at home, your options are limited. It is against the law to grow hemp plants residentially if you don’t live in a state where you are permitted. Residents of states such as Colorado, Oregon, California, and Washington are in luck on all counts.
These states produce lots of seeds or clones that enable you to grow CBD-rich plants. Recreational marijuana is also legal in all four states, so even if you can’t grow at home, finding high-CBD strains in a local dispensary is relatively easy. There are also many places selling industrial hemp plants, giving you a legal source of CBD.
Assuming that you are not a farmer, your best option is to grow genetically bred strains at home, if it is legal to do so. For the record, high-CBD strains include:
Otherwise, you can buy CBD oil online. There is an enormous number of sellers, and we cover many of the most reputable brands in our review section.
There is a lot of confusion and misinformation over whether or not you can purchase CBD oil in all 50 states. Technically, residents of Idaho, South Dakota, and Nebraska risk breaking the law (other states also have muddled rules). In reality, a tiny fraction of people get into trouble, and thousands of CBD companies freely ship their products across the country without incurring the wrath of state authorities.
It is best if you research your state’s laws on CBD oil, and see if anyone has ever got into trouble for buying or selling the cannabinoid. Incidentally, please share any stories about legal issues and CBD that you have heard about in the comments!
What About Hemp Seeds… Aren’t They High in CBD?
Perhaps you have noticed hemp seeds for sale at a local store. As they come from the hemp plant, you may believe they contain a large amount of CBD. After all, industrial hemp has a relatively high percentage. However, the hemp seeds you see on sale legally are nutritional products in the United States.
These are sterilized seeds, which means you are in for a disappointment if you try to plant them; they don’t produce any plants! Besides, it is the flowers and leaves of the hemp plant that contain CBD. There is a negligible amount of cannabidiol in hemp seeds.
Quick Tips on Growing Hemp
If you want to grow hemp to extract CBD oil from it, be prepared for an expensive process. You can try to perform a cheap extraction, but established brands such as PureKana and Premium Jane will blow you out of the water. These companies have invested heavily in equipment and utilize supercritical CO2 extraction to get full-spectrum products. They also spend a considerable amount of money to pay for third-party lab testing.
The above is unlikely to be an issue for farmers who are only interested in growing and selling the crop. The hemp plant is potentially productive on marginal cropland, but you get far better results with fertile land, as expected. It is a summer crop like sorghum or corn. As a result, hemp grows best in a temperate climate and prefers well-drained soil, cool nights and warm days.
Make sure you don’t skimp on water and nutrients. Be especially wary during the first six weeks of growth as hemp is susceptible to drought during that time frame. However, some farmers suffer due to high temperatures and drought in the late summer when the plants are almost mature. Typically, you can harvest hemp plants after 16 weeks. Here are a few fast tips for optimal hemp production:
- Keep the soil pH between 6.0 and 7.0.
- Use well-drained loam soil.
- Make sure you use more than 30 ppm Bray-1 P.
- Keep the level of exchangeable Potassium above 150 ppm.
- Don’t allow soil compaction, high clay content, or soil crusting.
Final Thoughts on Whether or Not It’s Illegal to Grow CBD Plants
If you live in a state where you are legally allowed to grow marijuana plants at home, you have no worries when cultivating hemp plants. In this case, remember that the same rules apply. If state law says, you must keep your weed hidden from view, the same goes for hemp plants. Also, growing hemp counts toward your cultivation ‘allowance.’ In these states, if you don’t want to grow the plant, you have easy access to the best-quality genetic CBD strains available.
Otherwise, you can only grow hemp on a commercial basis with a permit from your state’s department of agriculture. Even in this scenario, there are plenty of obstacles, with many state departments failing to implement clear instructions. Now that the USDA has finally issued guidelines, expect a more transparent picture during the next year or so.
WayofLeaf is not responsible for any illegal activity, and you should not use any of the information in this article for such a purpose.
Can you leagally grow marijuana for cbd oil
Date: September 15, 2021
Read time: 6 minutes
Medical marijuana patients 18 years and older will be able to grow up to 3 mature and 3 immature plants at home starting October 1, 2021, with a cap of 12 total plants per household. All adults over age 21 will be able to grow under the same rules starting July 1, 2023. Plants must be grown indoors and must not be visible from the street. People who choose to grow their own plants must do so in their primary residence and where individuals under 21 can not access the plants.