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Cogrsioa Resarc Service
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January 30, 2019
2018 Farm Bill Primer: Hemp Cultivation and Processing
The enacted 2018 farm bill (Agriculture Improvement Act
of 2018, P.L. 115-334) includes a number of provisions that
facilitate the commercial cultivation, processing, marketing,
and sale of industrial hemp in the United States. It expands
upon hemp-related provisions enacted in the 2014 farm bill
(Agricultural Act of 2014, P.L. 113-79) and includes
provisions that originated from congressional bills, such as
the Hemp Farming Act of 2018 (S. 2667, H.R. 5485).
Expanded Definition of Hemp
The 2018 farm bill expands the definition of hemp,
originally established in statute as part of the 2014 farm bill
(7 U.S.C. §5940(b)(2)), codified in Section 297A of the
Agricultural Marketing Act of 1946 (AMA). The amended
definition defines hemp to mean:
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 concentration
of not more than 0.3 percent on a dry weight basis.
Legalized Hemp Production and Sale
The 2018 farm bill amends the Controlled Substances Act
(CSA, 21 U.S.C. 802(16)) to exclude hemp from the
statutory definition of marijuana. For hemp to be excluded
from the CSA, it must contain no more than a 0.3%
concentration of delta-9 tetrahydrocannabinol (THC),
which is marijuana's primary psychoactive chemical. This
provision thus removes hemp-as defined in statute and
subject to oversight by the U.S. Department of Agriculture
(USDA)-from the CSA and from being regulated as a
Schedule I drug. This provision effectively legalizes the
cultivation, processing, marketing, and the sale of hemp and
any cannabinoid if it is derived from hemp that is produced
by a licensed grower and produced in a manner that is
consistent with the 2018 farm bill, including any associated
USDA regulations and applicable state regulations. All
other cannabis and cannabis-derived products produced in
any other setting remain a Schedule I substance under
federal law and are thus subject to the CSA's strictest
regulations (except for certain drug products approved by
the Food and Drug Administration [FDA]).
The enacted 2018 farm bill contains an interstate
commerce provision that prohibits states and Indian tribes
from interfering with the transport of hemp or hemp
products produced in accordance with the new USDA
requirements through their jurisdictions.
Created New Regulatory Framework
The 2018 farm bill creates a USDA-administered hemp
program under the AMA (7 U.S.C. § 1621 et seq.),
establishing a regulatory framework to monitor compliance
and regulate hemp production. It also expands eligibility to
include farmers in all states, the District of Columbia,
Puerto Rico, any other territory or possession of the United
States, and Indian tribes. The enacted farm bill authorizes
appropriations of such sums as are necessary to carry out
the provision that establishes this regulatory framework.
The new regulatory framework for hemp cultivation would
involve either a USDA-approved state or tribal government
plan or a plan established by the agency. States, territories,
and tribal governments wanting to have primary oversight
of hemp production within their jurisdictions must submit a
plan to USDA and obtain the agency's approval (AMA,
§297B). Such a plan would cover, for example, information
about grower location, procedures for testing, inspections,
licensing, background checks, disposal of hemp that does
not meet the legal definition, and enforcement of violations.
USDA is required to approve or reject a submitted plan
within 60 days after its receipt.
Alternatively, if the USDA rejects or revokes prior approval
of a submitted state or tribal plan, hemp production in that
state or tribal domain would fall under USDA's
jurisdiction. In this case, such hemp activities would be
subject to a plan established by USDA to monitor and
regulate hemp production (AMA, §297C). Accordingly, the
enacted farm bill requires USDA to develop an agency
plan(s) covering requirements such as recordkeeping,
testing, disposal procedures, and a licensing process and
provides that USDA may require additional practices and
procedures. USDA's plan(s) would be implemented in
states and tribes that do not have a USDA-approved plan.
Without such a license issued by USDA, it would be
unlawful to produce hemp in that state or tribal domain.
USDA must collect, maintain, and make accessible to
federal, state, territorial, and local law enforcement real-
time information regarding the status of a license or other
authorization for all hemp producers, whether participating
under a state, tribal, or USDA plan. USDA is also required
to report any unlicensed hemp production to the U.S.
Attorney General and is required to share certain other
information with law enforcement. The 2018 farm bill
clarifies, however, that USDA has the sole authority to
issue guidelines and regulations regarding hemp production
(AMA, §297D). It further clarifies that the enacted law does
not affect or modify the regulatory authority granted to
FDA under the Federal Food, Drug, and Cosmetic Act (21
U.S.C. §§301 et seq.) or Section 351 of the Public Health
Service Act (42 U.S.C. §262), including for hemp-derived
products.
Eventual Repeal of Hemp Pilot Program
The 2018 farm bill provides that the hemp pilot program
established under the 2014 farm bill (P.L. 113-79, §7606)
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