An informational page has sprouted up on the Tennessee Department of Agriculture’s main website that digs into some of the questions and issues surrounding the legal status of industrial hemp cultivation in the Volunteer State.
The page also serves to get the ball rolling on the development of state regulations and licensing processes to allow Tennessee farmers to grow hemp, as the department has been directed by the Legislature.
“We fully intend to have a workable draft of rules and regulations within the next few weeks as we gather some more information and as we get input from subject-matter experts,” Tennessee Agriculture Department spokesman Tom Womack told TNReport.
The Tennessee General Assembly passed a law this past session legalizing strains of the cannabis family that don’t yield significant amounts of delta-9 tetrahydrocannabinol, the naturally occurring psychoactive chemical chiefly responsible for producing intoxicating effects when the plant’s leaves and flowers are ingested.
In addition to removing low-THC varieties of cannabis from the state’s list of banned substances, the law declares that the Tennessee Department of Agriculture “shall oversee and annually license any grower who wishes to produce industrial hemp” and “develop rules and regulations concerning industrial hemp production.”
The law further states, “Any person who cultivates an industrial hemp crop of any size shall obtain a license from the department of agriculture.” The law requires that growers who seek licensing “shall agree that the department has the right to inspect the hemp crop for compliance,” and warns that any hemp crops grown without a license “will be considered marijuana” as defined in Tennessee’s controlled substances statutes.
The new law, sponsored by Sen. Frank Niceley, R-Strawberry Plains, and Rep. Jeremy Faison, R-Cosby, was approved on votes of 28-0 in the Senate and 88-5 in the House. It was signed by Gov. Bill Haslam on May 13. The department has 120 days from that date to develop rules, begin taking formal comments on them and schedule a public hearing for further input and discussion, which officials anticipate happening over the summer.
“Informally, we are already receiving suggestions from people from other states, people are calling in with questions and suggestions, so it’s an open process,” said David Waddell, administrative manager for the department’s Consumer and Industry Services Division, which will handle hemp licensing and regulation. “Our goal is to have the whole program up and going so that folks will be able to plant a crop next year.”
Already, the department has published an early-draft sketch of rules and licensing fees that the public can examine. The draft outlines proposed bookkeeping mandates for potential growers to follow so that agriculture and law enforcement officials can check up on them to ensure their hemp fields are legit.
The draft rules also suggest annual licensing fees of $500 for commercial growers and $100 for “research and development” growers. Currently, there are no minimum or maximum acreage requirements proposed.
In Colorado, the fee for obtaining a commercial hemp-growing license is $200 and, like Tennessee, $100 for a research license. The Kentucky Department of Agriculture does not charge a fee for a grower to register for a hemp “pilot program,” a spokesman for that department said, although they have to pay for a background check.
Tennessee’s agriculture department officials say they are looking for guidance from other states where hemp cultivation has been approved, like Kentucky and Colorado. For example, Tennessee’s website has a section on “guidance and issues regarding hemp production” that mirrors information on the Colorado Department of Agriculture’s website, including a caveat that states have “no jurisdiction over many other factors that producers will face,” and that “growing it is still considered illegal under federal law.”
Colorado’s rules for “administration and enforcement” of that state’s hemp regulatory program, which took effect this week, also bear a strong resemblance to Tennessee’s draft rules.
The legal status of industrial hemp at the federal level is still in flux, and just how much leeway Tennessee farmers will have to grow non-psychoactive cannabis without opening themselves to prosecution by U.S. law enforcement agencies is still unknown.
Federal law makes no distinction between cannabis plants that can produce a “high” and those that cannot, and growers must obtain permission from the U.S. Drug Enforcement Administration if they wish to avoid being targeted for arrest and property seizure.
However, under the U.S. Agricultural Act of 2014, otherwise know as the federal “Farm Bill,” which was passed by Congress and signed by President Barack Obama in February, hemp-growing is now legal under certain circumstances. The 15 or so states like Tennessee across the country that have laws of their own allowing industrial hemp cultivation are granted federal permission to experiment with hemp, provided it is “for purposes of research conducted under an agricultural pilot program or other agricultural or academic research.”
The Farm Bill defines “agricultural pilot program” as a state-approved initiative “to study the growth, cultivation, or marketing of industrial hemp.” The farm bill also declares that states must ensure that only universities and state ag departments “are used to grow or cultivate industrial hemp.” It adds that “sites used for growing or cultivating industrial hemp in a State (must) be certified by, and registered with, the State department of agriculture.”
The federal government — and in particular, the Obama administration’s DEA — has the boots-on-the-ground authority and enforcement muscle to decide if states and growers are following the letter of the Farm Bill, and federal drug laws in general.
Kentucky’s Department of Agriculture found that out recently in stark terms when the feds seized a shipment of hemp seed en route from Italy to the Bluegrass State that the department had purchased for planting this spring. U.S. officials ultimately relented and handed the seed over to the state, but only after the state ag department filed suit in federal court.
In their motion for a preliminary injunction and restraining order against the federal government, lawyers for the Kentucky Department of Agriculture wrote that the DEA and other U.S. law enforcement agencies involved in seizing the shipment were “violating the provisions of the Farm Bill by engrafting upon it additional regulatory and bureaucratic requirements that were not contemplated or enacted by the U.S. Congress.”
The actions of the DEA and other federal agencies “in stopping delivery of the hemp seeds, in the face of clear guidance from Congress, are arbitrary, capricious, not supported by any reasonable governmental or public interest, and not rationally related to carrying out any legitimate governmental purpose,” according to the Kentucky ag department’s motion.
In wake of the incident, there does appear to be some backlash against the DEA in Congress. A snippet of language buried in a spending bill approved last week by the U.S. Senate Appropriations Committee stipulates that the Justice Department and the DEA must refrain going forward from using their funding “in contravention of” the Farm Bill’s section allowing industrial hemp research cultivation.
Waddell, with the Tennessee ag department, said state officials here want to avoid that “kind of a blow-up with the DEA.”
“We have tried to learn what’s going on with other states, and try to avoid situations like that,” Waddell said.
No doubt there is ambiguity in the legal environment, said Waddell. Tennessee’s law was written with an eye toward the future “so that it wouldn’t have to be changed later” in the event that the federal government does grant the states greater latitude to encourage commercial hemp production, he said.
“The federal Farm Bill seems to be limited to research,” Waddell said. “There is some difference between the federal and the state law, so that is one of the things we are going to have to explore further.”