USDA Office of General Counsel Opinion on New Hemp Authorities

The Office of the General Counsel (OGC) of the USDA has issued a legal opinion to address questions regarding several of the hemp-related provisions in the 2018 Farm Bill.

These include:

  1. The removal of hemp and THC in hemp from the Controlled Substances Act

  2. A phase-out of the industrial hemp pilot authority in the Agricultural Act of 2014 (2014 Farm Bill)

  3. An amendment to the Agricultural Marketing Act of 1946 to allow States and Indian tribes to regulate hemp production or follow a Department of Agriculture (USDA) plan regulating hemp production

  4. A provision ensuring the free flow of hemp produced under either the 2014 Farm Bill or the 2018 Farm Bill in interstate commerce

The USDA expects to issue regulations implementing the new hemp production authorities in 2019.

Key Conclusions of the USDA Legal Opinion

Hemp is no longer a controlled substance.

As of the enactment of the 2018 Farm bill, on December 20, 2018, hemp has been removed from schedule 1 of the Controlled Substances Act and is no longer a controlled substance. Stephen Alexander Vaden, General Counsel USA May 28, 2019

The USDA provided in footnote 1 that both the definitions of industrial hemp under the 2014 Farm Bill and the definition of hemp under the 2018 Farm Bill require a THC concentration of not more than 0.3 percent for a Cannabis sativa L. plant to be considered hemp versus marijuana.

States and Indian tribes may not prohibit the interstate transportation of hemp.

After USDA publishes regulations implementing the new hemp production provisions of the 2018 Farm Bill contained in the Agricultural Marketing Act of 1946, States and Indian tribes may not prohibit the interstate transportation or shipment of hemp lawfully produced . . . States and Indian Tribes may not prohibit the interstate transportation or shipment of hemp lawfully produced under the Agricultural Act of 2014. Stephen Alexander Vaden, General Counsel USA May 28, 2019

Ten year ineligibility restriction for those with felony convictions related to a controlled substance.

A person with a State or Federal felony conviction related to a controlled substance is subject to a 10-year ineligibility restriction on producing hemp under the Agricultural Marketing Act of 1946. Stephen Alexander Vaden, General Counsel USA May 28, 2019

There is an exception to this rule, contact our office to make an appointment and see if this exception applies to you.

FDA Authority Not Modified

The USDA also noted the importance in emphasizing that the 2018 Farm Bill does not affect or modify the authority under the Secretary of Health or Human Services or Commissioner of Food and Drugs to regulate hemp under applicable U.S. Food and Drug Administration (FDA) laws.

USDA Hemp Documentation

Feel free to read the following documents in full for more information.

  1. Hemp Executive Summary and Legal Opinion – May 28, 2019

  2. May 28, 2019 Notice to Trade USDA Legal Issues Opinion on Hemp Production

  3. May 28, 2019 USDA Clarifies Hemp Production for Indian Tribes

#CBD #officeofgeneralcouncil #USDA

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