Industrial Hemp Now Legal in Washington, But State Kowtows to Feds

OLYMPIA, Wash. (Aug. 15, 2017) – Last month, it became legal to grow industrial hemp in Washington, but due to state bureaucrats the industry will remain shackled by federal law.

On July 23, House Bill 2064 (HB2064) went into effect. The law simply removed industrial hemp from the state’s controlled substances act. While marijuana is legal in Washington state, it is still considered a controlled substance and heavily regulated. Passage of HB2064 removed hemp from regulation as a controlled substance, opening the door for a full-scale commercial hemp market in the state by treating it like any other crop for farming.The new statute completely ignores federal law that  prohibits commercial hemp cultivation.

But a second law that went into effect the same day effectively undid HB2064. The Washington State Department of Agriculture (WSDA) has the authority to license and regulate hemp cultivation. Witha second bill passed this year (SB5131) now in effect, the agency can ensure all hemp growers comply with federal regulation.The law allows the WSDA to unilaterally set penalties for unlicensed hemp production, essentially once again treating it like a controlled substance.

The WADA website sums up the current limitations on commercial hemp cultivation.

“Currently, due to state and federal requirements, industrial hemp can only be grown or processed and marketed within the research goals of the IHRP. However, the research structure may allow for exploring the commercial viability of industrial hemp agriculture. Like any other project, you would need to submit a proposal to WSDA for approval to do profit-oriented research.”

FEDERAL FARM BILL

Early in 2014, President Barack Obama signed a new farm bill into law, which included a provision allowing a handful of states to begin limited research programs growing hemp. The “hemp amendment”

…allows State Agriculture Departments, colleges and universities to grow hemp, defined as the non-drug oil-seed and fiber varieties of Cannabis, for academic or agricultural research purposes, but it applies only to states where industrial hemp farming is already legal under state law.

In short, current federal law authorizes the farming of hemp – by research institutions, or within state pilot programs, for research only. Farming for commercial purposes by individuals and businesses remains prohibited.

Passage of HB2064 opened the door for Washington farmers to ignore federal prohibition and grow hemp anyway. While prospective hemp growers would still have to take federal law into consideration, by eliminating the state requirement for federal permission this law cleared away a major obstacle to widespread commercial hemp farming within Washington’s borders. But with the authority granted to it by SB5131, WSDA will undo that and enforce strict compliance with federal law.

TWO APPROACHES

The Washington Capital Press published an article contrasting Washington state’s approach to hemp with its neighbor to the south. While the WSDA will force growers to strictly comply with federal law, Oregon’s hemp program completely ignores it. The state has quickly developed a thriving hemp industry. The difference between the two approaches is stark.

Hemp is just now being planted in Washington by a handful of farmers, while Oregon is in its third year of hemp production and has more than 200 registered growers.

Washington carefully followed the 2014 Farm Bill. Oregon started working on hemp rules in 2013 under the assumption that the U.S. Justice Department’s hands-off approach to legalized recreational marijuana also applied to hemp.

Washington controls the seed supply and bans the production of CBD, which is extracted from the flower.

Oregon hemp farmers grow for the CBD market and obtain their seeds from wherever they can.

Oregon initially legalized hemp in 2009. Last year, Gov. Kate Brown signed House Bill 4060 into law. It relaxed state laws regulating hemp already on the books and made the crop more like other agricultural products. Within months, the Oregon Department of Agriculture had already promulgated new rules under the reformed law. According to Oregon’s Cannabis Connection, the rules set the stage to creates a “massive” medical hemp market.

It seems pretty clear Oregon’s decision to ignore unconstitutional federal prohibition has allowed the industry to flourish quickly. If past experience provides any indication, Washington’s hemp industry will languish shackled by federal law. States operating federally compliant research programs have not developed the kind of vibrant hemp industries we see in states like Oregon and Colorado that do not worry about federal compliance. Recognizing its limited research program was hindering the development of the industry. West Virginia offers just one example of failure while complying with the feds. The state elected to dump its restrictive licensing scheme during the last legislative session and will now issue federally non-compliant commercial licenses to growers.

But what about the Feds? According to the Washington Capital Press, they’ve had zero impact on Oregon’s hemp industry.

Oregon has not had run-ins with the federal government over hemp, said Lindsay Eng, the state Department of Agriculture’s director of market access and certification.

“We haven’t heard from the DEA at all, and we haven’t heard from growers saying they have,” she said.

HELPING JEFF SESSIONS

“While other blue states like California and New York are considering bills to withdraw state resources from the enforcement of federal marijuana or immigration laws, the WSDA seems hell-bent on helping Jeff Sessions keep his immoral and unconstitutional prohibition on hemp in place,” Tenth Amendment Center founder and executive director Michael Boldin said.

The Washington Hemp Industries Association has come down on the side of Sessions and the feds as well. The organization advocated for strict compliance in a press release.

Despite the recent passage of House Bill 2064, which removed industrial hemp from the State Uniform Controlled Substances Act, the cultivation of industrial hemp requires a license in Washington under RCW 15.120, much like farming a Dungeness crab requires a license. The WSDA has been given high praise from hemp industry leaders around the world for promulgating a federally-compliant hemp program that positions Washington to lead the U.S. in the promising economic and agricultural opportunities that hemp provides. There are a multitude of benefits and protections that come with federal compliance, and most U.S. States that have passed industrial hemp legislation have fallen short of implementing compliant programs, which compromises farmers and impedes the ability to develop successful commercial oilseed and fiber hemp markets.

Looking at the success of the federally non-compliant hemp program in Oregon, the Washington Hemp Association’s assertions seem pretty dubious.

The bottom line is no practical reason exists for Washington to comply with federal mandates and limit hemp production to research. Everybody knows a viable hemp market exists. If it didn’t the U.S. wouldn’t have to import hemp from Canada and China to meed demand. The WSDA needs to back off and stop trying to serve as foot soldiers in Session’s war on drugs.

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About Tenth Amendment Center
The Tenth Amendment Center is a national think tank that works to preserve and protect the principles of strictly limited government through information, education, and activism. The center serves as a forum for the study and exploration of state and individual sovereignty issues, focusing primarily on the decentralization of federal government power as required by the Constitution. For more information visit the Tenth Amendment Center Blog.

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