The

farm bill

is a “package of legislation passed roughly once every five years. Covering programs ranging from crop insurance for farmers to healthy food access for low-income families, from beginning farmer training to support for sustainable farming practices, the farm bill sets the stage for our food and farm systems.”

The most recent version, the 2014 Farm Bill, is set to expire on September 30th. As legislators began preparing the 2018 Farm Bill earlier this year, Senate Majority Leader Mitch McConnell (R-KY) included the entire language of the Hemp Farming Act of 2018 in the Senate version of the 2018 Farm Bill.

Why Isn’t Hemp Legal Yet?

Summary: When the Controlled Substances Act was passed in 1970, Congress feared law enforcement wouldn’t be able to distinguish marijuana from hemp. Thus, all forms of cannabis, including hemp, became illegal to possess.

It's no secret that the hemp industry has experienced a massive explosion over the past few years. However, there’s one pending piece of legislation that could permanently change its trajectory: the 2018 Farm Bill.

Back in 1937, Congress passed this little piece of legislation called the Marijuana Tax Act. For years, fear and resentment of marijuana had been cultivating among the public. A few studies linked the use of marijuana to crime and unruly behavior and prompted the federal government to step in. Thus, the Marijuana Tax Act effectively prohibited the possession of marijuana except for those willing to pay taxes for medical or research purposes.

Fast forward 32 years to 1969, when Leary v. United States hit the Supreme Court. Timothy Leary was an American psychologist and advocate for the therapeutic potential of psychedelic drugs. During a return trip from Mexico, he was arrested for possession of marijuana in violation of the Marijuana Tax Act. Leary’s defense against the act centered upon the requirement of self-incrimination, which violated the Fifth Amendment. As a result, the court overturned his conviction and ruled the Marijuana Tax Act unconstitutional.

However, shortly afterward, Congress passed the Controlled Substances Act in its place. This act classified marijuana and its cannabinoids as Schedule 1 controlled substances, making it illegal to possess any amount of any part of the plant. Unfortunately, hemp fell into this categorization. This was not based on legitimate concerns about dangerous effects - Congress simply worried that law enforcement agents would not be able to distinguish the non-psychoactive plant from its THC-laden partner.

2014 Farm Bill

Summary: The 2014 Farm Bill allowed the production and distribution of hemp as part of state-run research programs.

Fortunately, the 2014 Farm Bill made major headway in hemp legalization. This Farm Bill included provisions that allowed growing by state-run hemp research programs.Specifically, “An institution of education or a State department of agriculture may grow or cultivate industrial hemp if (1) the industrial hemp is grown or cultivated for purposes of research conducted under an agricultural pilot program or other agricultural or academic research; and (2) the growing or cultivating of industrial hemp is allowed under the laws of the State in which such institution of higher education or State department of agriculture is located and such research occurs.”

Currently, 40 states have established Farm Bill compliant hemp pilot programs and removed barriers to its production.

However, even with these allowances in the 2014 Farm Bill, there has still been a great deal of confusion surrounding the legality of hemp.The DEA issued an opinion statement in 2016 asserting that CBD is, in fact, illegal because the agency did not believe it was possible to extract significant quantities of CBD from parts of the plant that are exempt from the Controlled Substances Act (CSA). Likewise, the plant still contains trace amounts of THC. Thus, those found in possession of any hemp products could be prosecuted by law.

In response to this statement, the non-profit Hemp Industries Associationsued the DEA in 2017 in an attempt to assert the legality of CBD oil and other hemp products. Unfortunately, the court tossed the case on technicalities, citing that the HIA hadn’t participated in an official comment period that had taken place in 2011.

Although this wasn’t exactly a win for the hemp industry, it wasn’t really a loss either. The Hoban Law Group, which specializes in cannabis law,weighed in on these events, explaining that “in dismissing the case, the court stated that the Farm Bill actually supersedes the Controlled Substances Act (CSA)...when the CSA conflicts the Farm Act, the Farm Act - and legal hemp and CBD - win out.”

Hemp Legalization in the 2018 Farm Bill