Now in Effect: West Virginia Hemp Seed Law Can Further Expand Commercial Market Despite Federal Prohibition

CHARLESTON, W. Va. (June 5, 2018) – Today, a new law establishing a hemp seed certification program in the state went into effect. Enactment of this law paves the way for faster development of the state’s hemp market and will help further nullify federal prohibition in effect.

A coalition of three Democratic senators introduced Senate Bill 475 (SB475) on Feb. 2. The legislation authorizes the Commissioner of Agriculture to create and administer an industrial hemp seed certification program in West Virginia.

The Senate passed SB475 by a 33-1 vote. The House approved the measure 97-0. With Gov. Justice’s signature, the law went into effect at midnight on June 5.

Seed certification is vital to growing a vibrant hemp industry. A shortage of usable certified seed throws up one of the biggest barriers to hemp research and farming. Few domestic seed sources exist, and the federal government strictly regulates importation and transportation of hemp seeds. By creating a program to encourage the development of certified seed in the state, it will open the door to vastly expand the hemp market in West Virginia.

Colorado became the first state in the country to create a certified seed program back in 2016. According to a recent report by the Norwood Post, “The success of the industry perhaps stems from the state’s ‘look the other way’ stance on hemp seed acquisition. That flies in the face of federal direction to get approval from the U.S. Drug Enforcement Administration.”

The new West Virginia law will require the state’s seed program to remain federally compliant. But even with federal shackles, establishing a seed certification program takes an important step forward. It will help alleviate seed shortages and allow researchers to create hybrids adapted to the state’s soil and climate. And West Virginia has a history of eventually ditching federal compliance.

The state legalized hemp in 2002. Under that law, the state ran a federally compliant licensing program for research purposes until last year. Recognizing its limited research program was hindering the development of the industry, West Virginia dumped its federally compliant hemp program during the 2017 legislative session and now issues federally non-compliant commercial licenses to growers. West Virginia Public Broadcasting confirmed limits imposed by the old program due to its conformity with federal law were holding back the development of a viable hemp industry and everyday farmers cannot benefit.

“But because of the strict requirements under the 2014 bill, growers are not able to sell their plants and cannot transport them across state lines to be turned into those usable products. That’s limited the ability to create a real hemp industry in the state.”

According to a report in the Charleston Gazette-Mail, a hemp industry is already starting to take root in the state. Passage of SB475 would allow the market to expand even faster.

FEDERAL FARM BILL

In 2014, Congress cracked the door open for hemp in the U.S. with an amendment to the 2014 Farm Bill. The law allows hemp cultivation for research purposes, but prohibits “commercial” production.

The “hemp amendment” in the 2014 farm bill  —

…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 2016, the U.S. Department of Agriculture and Drug Enforcement Agency released a “statement of principles” to guide interpretation of the hemp section in the Farm Bill. It states, “The growth and cultivation of industrial hemp may only take place in accordance with an agricultural pilot program to study the growth, cultivation, or marketing of industrial hemp established by a State department of agriculture or State agency responsible for agriculture in a State where the production of industrial hemp is otherwise legal under State law.”

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

The definition of “commercial” and the extent to which sales and marketing are allowed under the rubric of “research” remains murky. This has created significant confusion.

The statement of principles also asserted that industrial hemp programs are limited to fiber and seed. It didn’t mention the CBD oil or other edible hemp products. The DEA has apparently interpreted that to mean they remain illegal. The agency has flat-out said CBD cannot be sold under any circumstances. An Indiana TV station interviewed DEA spokesman Rusty Payne who said, “It’s not legal. It’s just not.”

Under California law, farmers can ignore federal prohibition and grow hemp commercially anyway. While prospective hemp growers still have to take federal law into consideration, by eliminating the state requirement for federal permission the law clears away a major obstacle to widespread commercial hemp farming within the state’s borders.

Several other states with federally-compliant hemp programs, such as Kentucky, North Dakota, Minnesota and New York, have grown significant acreage under federally-approved research programs. This takes the first step, but with federal shackles in place, these states are not legally allowed to develop any kind of commercial market. Ironically, many of these “federally compliant” programs are not actually federally compliant.

OTHER STATES

Other states, including Colorado, Oregon, Maine, California and Vermont have simply ignored federal prohibition and legalized industrial hemp production within their state borders.

Colorado was the first state with widespread commercial hemp production. Farmers began growing hemp in southeast Colorado back in 2013 and the industry is beginning to mature. The amount of acreage used to grow industrial hemp in the state doubled in 2016 to nearly 5,000 acres, and nearly doubled again in 2017.

The Oregon legislature initially legalized industrial hemp production in 2009. While it was technically legal to grow hemp in the state, farmers didn’t take advantage of the opportunity for nearly five years. When the Oregon Department of Agriculture finally put a licensing and regulatory program in place early in 2014, farmers began growing hemp. The initial regulatory structure placed significant limits on hemp farming and effectively locked small growers out of the market. In 2016, 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. The state produced 3,469 acres of hemp in 2017.

Both Colorado and Oregon demonstrate how loosening rules at the state level encourage the market and allow hemp a legitimate commercial hemp industry to develop.

HUGE MARKET FOR HEMP

According to a 2005 Congressional Research Service report, the U.S. is the only developed nation that hasn’t developed an industrial hemp crop for economic purposes.

Experts suggest that the U.S. market for hemp is around $600 million per year. They count as many as 25,000 uses for industrial hemp, including food, cosmetics, plastics and bio-fuel. The U.S. is currently the world’s #1 importer of hemp fiber for various products, with China and Canada acting as the top two exporters in the world.

During World War II, the United States military relied heavily on hemp products, which resulted in the famous campaign and government-produced film, “Hemp for Victory!

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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