Lay-of-the-law-Paul-Goeringer

Earlier this year, I wrote about the 2018 Farm Bill making significant changes to the classification of hemp and allowing states to begin to develop regulations for the legal production of hemp. The 2018 Farm Bill removes hemp from the definition of marijuana under the Controlled Substances Act and allows for states and tribal governments to begin developing hemp production plans. During the previous session, the Maryland General Assembly passed legislation allowing the Maryland Department of Agriculture to develop a hemp production plan for the state. MDA will be able to create this hemp production plan once USDA releases the guidelines for the state programs.

Section 10113 lays out two routes for a producer to begin producing hemp legally. The first route is for a state or tribal government to take charge of regulating hemp production within their boundaries. To take charge, a state department of agriculture will submit to USDA for approval of a hemp production plan. The hemp production plan must include a land recording system, testing procedures, procedures to destroy hemp with THC concentrations over the legal limits (less than 0.3% THC concentration level per dry weight basis), procedures to enforce the plan, minimum annual inspection requirements, system to convey this information to USDA, and certifying to USDA having the resources to carry out the hemp production plan. A producer will need to comply first with the state’s hemp production plan before legally growing hemp. Currently, these plans are estimated to take a year to 18 months for states to finalize and USDA to approve.

The second route is if the state or tribal government does not have an approved production plan, then USDA will develop a plan for them. USDA’s ability to create a state or tribal plan will depend on the existing state or tribal laws. For example, if state law still classifies hemp as a controlled substance, then USDA will not be able to develop a production plan. If hemp production is permitted, then the USDA hemp production plan will need to meet the same minimum criteria required for states and tribal governments.

During the 2019 legislative session, the Maryland General Assembly passed HB 1123 which will make changes to the state’s hemp laws. The bill was recently signed by Gov. Hogan and was effective on June 1. Maryland’s criminal law currently excludes industrial hemp from the definition of marijuana. Section 5-101 currently excludes “the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9-tetrahydrocannabinol concentration that does not exceed 0.3% on a dry weight basis.”

On June 1, this definition was revised to include “the plant Cannabis sativa L. and any part of that plant, including all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9-tetrahydrocannabinol concentration that does not exceed 0.3% on a dry weight basis.”

This revision will make clear that products derived from industrial hemp are excluded from the definition of marijuana.

HB 1123 makes minimal changes to the existing hemp research program that MDA manages. The most significant changes in HB 1123 will be with the creation of a Hemp Production Program. The new program will allow growers who meet the qualifications in the state’s hemp production plan to grow hemp without participating in the research program.

HB 1123 became effective on June 1, but this does not mean that growers can start growing hemp immediately unless they are already participating in the research program. MDA still needs to develop a hemp production plan for USDA approval. At this time, USDA has not published the regulations to implement the requirements for a hemp production plan but this is expected to happen later this year. Maryland growers still need to wait for more leeway in growing hemp till sometime in 2020.

Paul Goeringer is a University of Maryland Extension legal specialist with the Department of Agricultural and Resource Economics.

This is not a substitute for legal advice.