Hemp and the New Senate Farm Bill

21 Nov Hemp and the New Senate Farm Bill

The U.S. Senate’s version of the Farm Bill finally landed this week. They’re calling it the Rural Prosperity and Food Security Act of 2024 (the “Senate bill”). The Senate bill follows on the House’s proposal, called the Farm, Food and National Security Act of 2024 (the “House bill”), offered in May. Neither the Senate bill nor the House bill would preempt state or Indian law regarding hemp or the regulation of hemp products. This means states and tribes will retain a lot of latitude in regulating hemp and hemp-derived products– which gets people fired up.

Aside from giving states some runway, the Senate bill and the House bill differ in key respects regarding hemp. Therefore, these august bodies must confer and reconcile their sundry proposals. That could happen in 2024, but seems more likely in 2025 when the new Congress convenes. As of this week, though, we finally have a framework.

The Senate Bill re-defines “hemp” and defines “industrial hemp”

Section 10016 of the Senate bill (“Hemp Production”) amends the definition of “hemp.” Hemp was defined in the 2018 Farm Bill and removed from the federal Controlled Substances Act (CSA), taking us on a truly wild ride. See: What Happened to Hemp? (“What Happened”). The Senate bill also gives us a definition for “industrial hemp.” Here are those definitions, with points of emphasis in bold:

(1) Hemp. The term “hemp” means (A) the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 total tetrahydrocannabinol concentration (including tetrahydrocannabinolic acid) of not more than 0.3 percent on a dry weight basis; and (B) industrial hemp.

(3) Industrial Hemp. The term “industrial hemp” means the plant Cannabis sativa L. if the harvested material (A) is only (i) the stalks of that plant, fiber produced from those stalks, or any other manufactured product, derivative, mixture, or preparation of those stalks (except cannabinoid resin extracted from those stalks); (ii) whole grain, oil, cake, nut, hull, or any other compound, manufactured product, derivative, mixture, or preparation of the seeds of that plant (except cannabinoid resin extracted from the seeds of that plant); or (iii) viable seeds of that plant produced solely for production or manufacture of any material described in clause (i) or (ii); and (B) will not be used in the manufacturing or synthesis of natural or synthetic cannabinoid products.

The new regime

Again, the definitional stuff in bold is what I want to emphasize.

First, the Senate bill keeps the THC threshold at 0.3 percent, which is an arbitrary number we’ve been advocating against for years. The Senate bill mirrors the House bill in this respect, though, so we are stuck with this– unless Ron Paul gets his way. (He likely won’t get his way.)

Second, the Senate bill keeps the 2018 Farm Bill’s total THC standard, including THCA. The House bill does this too. This was fairly predictable: in What Happened, I wrote that we could “expect the total THC standard to remain, which means that actual Delta-9 THC won’t be the only metric for calculating THC content.”

We’ve also explained on this blog that the 2018 Farm Bill and USDA rules mandate total THC testing on pre-harvest hemp batches, but do not mandate such testing on post-harvest hemp or hemp products. The Senate bill doesn’t change this paradigm, which means the “loophole” for gas station weed remains open. This proposal is a big win for opponents of the House bill’s “Miller Amendment,” which would narrow the definition of “hemp” to exclude intoxicating hemp-derived substances.

Third, the Senate bill introduces a new definition and framework for industrial hemp. The House bill does this too, albeit slightly differently. The idea here is to invite farmers to grow hemp for fiber and grain purposes, while freeing them from regulatory burdens with the Department of Agriculture and criminal exposure with the Department of Justice. More specifically, for “industrial hemp” growers, the Senate bill:

• removes background check requirements;
• instates “relaxed regulatory requirements” for sampling and inspection methodologies (which will need to be adopted by rule); and
• develops a certified seed program. 

The Senate bill also makes any hemp producer ineligible to grow hemp for five years if that producer, “with a culpable mental state greater than negligence, produces a crop of hemp that is inconsistent with that license.”(Hint: use the seed program.) The proof standard here seems like it could be an issue, and even if anyone has been adjudicated as growing marijuana under the guise of hemp, Farm Bill ineligibility seems like a far-off concern.

Bottom line

The big takeaway for me is that the Senate bill leaves the door open for intoxicating hemp products, whereas the Miller Amendment to the House bill does not. Something’s gotta give. And it needs to happen soon, because we’re already long overdue. As I explained in a webinar last week, the Farm Bill deals with the nation’s entire food supply, not just hemp. Therefore, this is not like with the SAFE Banking Act, where we have a proposed law specific to cannabis that may or may not ever pass. The Farm Bill must pass, and soon.

Stay tuned and we’ll keep you updated on any major happenings. For more on this topic, check out our massive hemp and CBD archive, or these specific, recent posts: