Kentucky attorney general says growing industrial hemp is still illegal, but Kentucky Hemp Commission attorney says it’s not
In August, the Department of Justice (DOJ) issued a ruling that would honor state laws to regulate small-scale marijuana sales in states, notably Washington and Colorado, where legislation has already been passed.
With the DOJ having done so, industrial hemp should also be allowed, said Kentucky Agriculture Commissioner James Comer.
He said that if the federal government would make allowances for marijuana, how could it not do the same for industrial hemp?
Legislation passed during the last General Assembly session has created an administrative framework (Senate Bill 50) regulating the growing of the crop — if a federal statute prohibiting it were lifted. Coupled with the recent DOJ ruling, that has prompted the Kentucky Hemp Commission (KHC) to take action. The commission voted in favor of having Comer and Sen. Rand Paul draft a letter to the DOJ, informing the agency of SB 50 and the intention to move forward in implementing that law by beginning the regulation and licensing process, so state farmers who want to raise the crop could be doing so by this spring.
But just when supporters of industrial hemp thought a spring planting season was on the horizon, another obstacle has popped up, this time from Kentucky’s Attorney General (AG).
In response to concerns voiced from “various stakeholders, including law enforcement officials throughout the state, members of the General Assembly and members of the public,” Attorney General Jack Conway sent an advisory letter last month to Kentucky State Police Commissioner Rodney Brewer, issuing his understanding of state and federal law as it pertains to growing hemp and the KHC’s decision to move forward with the process of registering farmers who want to grow it.
Conway said in his letter that even with the DOJ ruling and SB 50, growing hemp is still illegal, unless a producer receives a federal waiver to do so.
“Despite the passage of Senate Bill 50 (2013) and the issuance of a recent memorandum from the U.S. Department of Justice prioritizing federal enforcement interests in states that have taken steps to legalize marijuana, the cultivation and growth of industrial hemp remains illegal in Kentucky. Any individual or entity that invests in anticipation of growing industrial hemp in the near future, and any individual or entity that intentionally grows hemp within the Commonwealth, will expose themselves to potential criminal liability and the possible seizure of property by federal or state law enforcement agencies,” the letter noted.
Comer said the federal rule should include hemp as well. He was quick to respond to Conway’s letter.
“I’m disappointed to see that Attorney General Conway has chosen to play politics with this issue,” Comer said in a statement. “We should be doing everything we can to create new sources of revenue for Kentucky farmers and new jobs for Kentuckians who need work. I call on Attorney General Conway to stop threatening Kentucky farmers.”
Luke Morgan, who serves as the attorney for the Kentucky Hemp Commission, said a document released a decade ago from the Drug Enforcement Administration (DEA) indeed allows for hemp production in this country.
“In 2003, the DEA issued what’s called a final rule, stating that the cannabis plant that has less than .3 percent of THC, which is the drug in marijuana … that plant is not considered a controlled substance,” he said. “So, basically what this rule from the DEA says is that industrial hemp is not considered marijuana.”
Morgan added that in SB 50, the legislature specifically defined industrial hemp as having less than .3 percent of THC in it — thus industrial hemp is not considered subject to the Controlled Substances Act.
Daniel Kemp, deputy communications director for the attorney general’s office, said that Conway was not opposed to industrial hemp farming in Kentucky, so long as farmers receive a waiver from the federal government and law enforcement officials can enforce it.
Conway also noted in his letter that the Controlled Substances Act does not set a level for THC concentration but lists as a Schedule 1 substance, “any material, compound, mixture or preparation which contains any … THC. Federal law still treats hemp as marijuana, and preempts any state law in conflict with it.”
Comer says because of the 2003 ruling and SB 50, it’s legal to grow the plant, and he sees Conway’s letter as a threat to prosecute farmers.
“Hemp is legal in Kentucky, and the federal government has made it clear that it is not going to prosecute farmers for growing hemp. It makes no sense that Attorney General Conway would throw up an unnecessary government obstacle to an industry that has the potential to create jobs and revenue for Kentucky,” he said.
Morgan said the federal government should provide clarification over the issue and that the Hemp Commission is seeking that clarification and to jointly work through this for the benefit of Kentucky farmers.
Brian Furnish, commission chair, said it was made clear during the last commission meeting that even though the group wished to move forward, he did not want the state to “get a black eye in this process.”
“We want to make sure we cautiously approach this and do everything properly,” he said.
Conway’s letter concluded by saying, “While Kentucky law is set to mirror any changes in federal law regarding the growth of industrial hemp, as of yet no changes have been made to federal law to legalize the growth of industrial hemp. Therefore, it remains illegal to grow industrial hemp without express authorization from the federal government under both federal and Kentucky law.”