MADISON, Wisc. (Oct. 22, 2018) – A commercial hemp market is developing in Wisconsin despite federal prohibtion.
In late 2017, Wisconsin Gov. Scott Walker signed a bill into law legalizing hemp cultivation for research purposes only in compliance with federal law. Milwaukee NPR station WUWM recently declared, “Law Change Creates Market for Hemp in Wisconsin.” Washington Farm Bureau director of government relations, Rob Richard, told the radio station that Wisconsin farmers quickly got hemp farming off the ground after the law went into effect.
“We’ve had more interest and excitement in the first year of our program than any other state in the country. The fact that we had about 370 applications come in this spring with about 220 grower licenses that actually got approved and about 88 processor licenses got issued. There is a tremendous amount of excitement.”
Former Milwaukee Alderman Mike McGee Junior and his business partner Maya Mays opened a kiosk in the Mayfair Mall selling hemp-based products last summer. That kiosk quickly grew into a store. The duo currently operates three stores in the Milwaukee area selling CBD oil and other hemp products. According to WUWM, “customers can check out products ranging from candy and cookies to protein crisps to lotions and body butters. There are even dog treats — all made with CBD oil from the hemp plant.”
Mays said pure CBD oil ranks as their best-seller.
“So, the people that we serve, they have like fibromyalgia, MS, chronic arthritis, PTSD, epilepsy, ADHD and we have nothing but a 100 percent success rate.”
But despite the business growth enjoyed by McGee and Mays, and despite the relief their customers have enjoyed using the CBD products they sell, and despite the widespread belief in the legality of the “federally compliant” Wisconsin hemp program, the federal government considers their business illegal.
In fact, despite the legal posturing, the Wisconsin hemp program isn’t federally compliant. Passage of the Wisconsin hemp law, even with provisions intended to keep it within bounds of federal law, has led to the nullification in effect of federal prohibition.
Many people mistakenly believe CBD is legal. But the feds beg to differ. In fact, the DEA considers CBD a schedule 1 drug, and as such, illegal in every state. The only exception — a CBD drug called Epidiolex approved by the FDA June 27, 2018, to treat seizures in a rare form of epilepsy, and only with a prescription.
People in the cannabis industry who argue that CBD is legal over the counter generally rely on the “hemp amendment” tacked onto the 2014 farm bill. But the law only legalized hemp production for limited purposes. It “allows State Agriculture Departments, colleges and universities to grow hemp, defined as the non-drug oilseed 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.”
This serves as the basis for the Wisconsin hemp law passed last year.
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” remains murky and has created significant confusion.
The statement of principles also asserted that industrial hemp programs are limited to fiber and seed. It didn’t mention CBD oil or other edible hemp products. The DEA has interpreted that to mean CBD and hemp food products remain illegal. According to the DEA, CBD cannot be sold under any circumstances. An Indiana TV station interviewed DEA spokesman Rusty Payne, who reiterated the agency’s position.
“It’s not legal. It’s just not.”
Payne says cannabis plants are considered a Schedule I controlled substance, and medicinal oils derived from cannabis plants are illegal according to two federal laws: the Controlled Substance Act and the Food, Drug and Cosmetic Act. He said confusion surrounding the Agricultural Act of 2014 (better known as the “Farm Bill”) is frequently cited as legal justification by those who want to manufacture, sell or use CBD oil. The DEA believes the Farm Bill permits only CBD research — not CBD marketing and sales.
“Anybody who’s in violation [of the federal laws] always runs that risk of arrest and prosecution,” he said.
Another DEA spokesman told the Louisville Courier-Journal, “All hemp products that can be consumed are illegal.”
Nevertheless, people in Wisconsin, and across the country are selling, buying and using CBD, and nullifying the federal law in practice and effect.
And the feds aren’t doing anything about it. Even DEA spokesman Payne admitted the agency isn’t enforcing federal law. The WTHR reporter asked him what he would do if he was in the position of a mother who found CBD helped her child deal with excruciating pain related to cancer treatment. He said he would do the same exact thing — without hesitation.
“I cannot blame these people for what they’re doing. They are not a priority for us … it would not be an appropriate use of federal resources to go after a mother because her child has epileptic seizures and has found something that can help and has helped. Are they breaking the law? Yes, they are. Are we going to break her door down? Absolutely not. And I don’t think she’ll be charged by any U.S. Attorney.”
Wisconsin serves as yet another example of successful state nullification of federal hemp law in effect and practice. The market for CBD and other hemp products has completely overwhelmed federal efforts to control it. At this point, even states trying to stay federally compliant have effectively engaged in nullification. The feds lack to personnel, resources and even the will to effectively enforce federal hemp law. That genie will never go back into the bottle.
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.