While the roll-out of hemp regulations in the wake of the 2018 Farm Bill is continuing in fits and starts, the U.S. Department of Agriculture did open the door to hemp seed imports.
Jessica Wasserman, a partner in Greenspoon Marder’s cannabis law practice, tells Cannabis Business Times that it’s a welcome development for U.S. farmers eager to get to work. “The farmers have been pushing for this, definitely, because they need more seed,” she says. “Canada has been active longer than the U.S. and has good seed stock that the farm community very much wanted.”
Hemp seed may be imported from Canada with the following accompaniments: a phytosanitary certification from Canada’s national plant protection organization (“to verify the origin of the seed and confirm that no plant pests are detected”) and a Federal Seed Analysis Certificate for hemp seeds grown in Canada.
U.S. farmers may also source and import hemp seed from other countries, of course; those seed packages must also be tagged with the phytosanitary certification of whichever state agency heads up plant protection in a given country.
All hemp seed imports remain subject to inspection by U.S. Customs and Border Protection (CBP). That’s where the issue gets into less clear territory.
“[This guidance] does not at all help on any of the importation or trade or interstate commerce issues arising from the whole question about 0.3-percent THC by dry weight,” Wasserman says, referring to the legal threshold at which point a cannabis plant is known as “hemp” (under 0.3-percent THC content) or, in some jurisdictions, “marijuana.”
“Hemp seeds have zero THC—and zero CBD, for that matter,” Wasserman says. “This didn’t require any DEA input, necessarily.”
The 2018 Farm Bill removed hemp from the U.S. list of schedule substances (it had been on Schedule I, along with marijuana). But the bill did not remove any hemp-derived cannabinoids from the list of Schedule-I substances.
Despite the passage of the Farm Bill, CBP has continued to follow DEA’s strict orders on CBD by seizing products. While hemp seed now falls outside the purview of DEA oversight, hemp-derived compounds have languished in a certain regulatory limbo. The chemical compound—CBD, in most cases—continues to be illegal. But when it’s derived from hemp, which is legal, what happens then?
A recent federal court ruling in California strikes an interesting chord and insists that hemp-derived CBD products “will not be subject to seizure.”
According to U.S. District Judge Jesus Bernal, “Section 12619 of the 2018 Farm Bill amended the CSA definition of marijuana so that it now includes an exemption for hemp, defined as ‘any part’ of the Cannabis sativa L. plant ‘with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.’ Under this new exemption, any future shipments of industrial hemp product containing less than 0.3% THC by dry weight will clearly fall outside the CSA definition of marijuana and will not be subject to seizure.”
The phrase “any part” is key. Bernal is pointing to hemp-derived CBD products—those containing the chemical constituents of a plant legally considered “hemp.” The USDA, in its guidance on imports this month, is pointing to the more fundamental products for U.S. farmers: the hemp seed itself.
All of this is to say that U.S. hemp legalization is being sorted out via incremental legislation, federal litigation and regulatory agency memos.
As far as any broader regulatory structure for the domestic hemp industry, the USDA intends to issue those rules no earlier than the fall of 2019. The goal, officials have stated, is to have that guidance in place for the 2020 growing season.
Some U.S. states are developing their own rules for the hemp industry, which must then be approved by the USDA. The federal department will also be developing an overarching set of federal regulations for the hemp industry, under which all hemp businesses must operate.
For now, states, tribes and higher education institutions may continue to work under the guidance of the 2014 Farm Bill, which allowed for the development of hemp research pilot programs.