ANALYSIS--Hemp Farming Act of 2018 (S. 2667)

Senator Mitch McConnell (R-KY) introduced S.2667, the Hemp Farming Act of 2018, in the Senate on April 12, 2018. The bill's general purpose is stated as "A bill to amend the Agricultural Marketing Act of 1946 to provide for State and Tribal regulation of hemp production, and for other purposes."

S. 2667 aims to make hemp an ordinary agriculture commodity by removing it from Schedule I of the United States Controlled Substances Act (CSA). The bill defines hemp as "the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis." The CSA describes a Schedule I drug as a drug that has a high potential for abuse and has no current accepted medical use in treatment.

Under S. 2667, if a State or Indian tribe wants to have "primary regulatory authority over the production of hemp" in their territory, then the State or Indian tribe must "submit to the Secretary, through the State department of agriculture...or the Tribal government...a plan under which the State or Indian tribe monitors and regulates the production" of hemp as described in the bill. The State or Indian tribe's plan must provide the following:

(i)  a practice to maintain relevant information regarding land on which hemp is produced in the State or territory of the Indian tribe, including a legal description of the land, for a period of not less than 3 calendar years;

(ii)  a procedure for testing, using post-decarboxylation or other similarly reliable methods, delta-9 tetrahydrocannabinol concentration levels of hemp produced in the State or territory of the Indian tribe;

(iii)  a procedure for the effective disposal of products that are produced in violation of this subtitle; and

(iv)  a procedure to comply with the enforcement procedures under subsection (d)...

After a plan is submitted by a State or Indian tribe, the Secretary must approve or disapprove of the plan within 60 days. However, if the plan is disapproved because it does not comply with the requirements stated above, the plan can be amended and resubmitted.

A hemp producer can negligently violates their plan by:

(i) failing to provide a legal description of land on which the producer produces hemp;

(ii)  failing to obtain a license or other required authorization from the State department of agriculture or Tribal government, as applicable; or

(iii)  producing Cannabis sativa L. with a delta-9 tetrahydrocannabinol concentration of more than 0.3 percent on a dry weight basis[,]

If a hemp producer does violate their plan, then the hemp producer must correct the negligent violation by a reasonable date, and they will be required to "periodically report to the State department of agriculture or Tribal government...on the compliance of the hemp producer with the State or Tribal plan for a period of not less than the next 2 calendar years." The bill provides that if a hemp producer negligently violates their plan they cannot "be subject to any criminal or civil enforcement action by the Federal Government or any State government, Tribal government, or local government other than the enforcement action" stated above. But, a hemp producer that violates their plan three times within a 5-year period will become ineligible to produce hemp for five years following their third violation. The bill also provides that a hemp producer that violates the State or Indian tribe plan with a culpable mental state shall be reported to the Attorney General and the chief law enforcement officer of the State.

Additionally, S. 2667 aims to amend the Federal Crop Insurance Act to make hemp insurable, and the bill proposes other amendments to legitimize hemp research and its funding.

The Atlantic reports that it is "legal to sell products made from hemp in the United States, but the market is currently filled almost entirely by imports from other countries" such as Canada and China. So with the passage of S. 2667, United States farmers could reduce the amount of hemp being imported. The article also states that farmers struggling to make a profit on tobacco may be able to make up some of their losses with the legalization of hemp.

Unlike many of the new marijuana related bills that have a small chance of being enacted, S. 2667 is expected to have a moderate chance of becoming law.

--Wyatt Hinson