Hemp – Its History and Why it is Illegal to Cultivate in 3 States

Hemp had a long history of being grown and outlawed in the United States, and now 47 states have passed legislation permitting the cultivation of industrial hemp.

The cultivation of hemp was legal until the passage of the Marijuana Tax Act in 1937. The Act did not criminalize the possession but imposed fines to which marijuana, cannabis, or hemp handlers were subject. The Act stated, “provisions of the Marihuana Tax Act, every person who sells, deals in, dispenses, or gives away marihuana must register with the Internal Revenue Service and pay a special occupational tax.” In WWII, the USDA produced a film titled “Hemp for Victory” encouraged farmers to grow hemp for the war effort, and almost a million acres were planted in the Midwest. After the war, the tax was reinstated. It wasn’t until 1970 with the passage of the Controlled Substances Act, under the Nixon administration, that hemp was illegal despite an exemption for it that was included in the Act.

In 2013, with the legalization of hemp in Colorado, the 2014 Farm Bill provided language that defined industrial hemp as different from marijuana and authorized universities or state’s of agriculture to cultivate and conduct research in states that legalized hemp cultivation. It wasn’t until the 2018 Farm Bill that the gates were open for the production of hemp as an agriculture commodity. The bill allows states to submit a plan and apply for primary regulatory authority over the production of hemp. A state plan must include specific requirements, such as keeping track of land, testing methods, and disposal of plants or products that exceed the allowed THC concentration.

All but three states (Idaho, Mississippi, South Dakota) and the District of Colombia have enacted legislation to establish the cultivation and production of industrial hemp.

Idaho’s House Bill 122 is currently “adjourned sine die” or held at desk for an indefinite period as of April 2019 after passing the state senate. The bill called for the “research, production, and regulation of hemp; and to provide an exception regarding tetrahydrocannabinol.” Law enforcement groups had concerns about the bill stating it would potentially legalize marijuana, the Senate amended the bill heavily leaving hemp on the list of Schedule 1 substances.

As a result, most of the original House sponsors dropped their support. Idaho Rep. Dorothy Moon, R-Stanley, expressed frustration that with the amendments, the bill no longer conforms to the 2018 Farm Bill.

In the interim, Idaho passed Bill 300, where it is currently at the Office of the Chief Clerk, which allows for the transportation of hemp through the state. However, the transport requires a permit from the State Department of Agriculture and inspections from law enforcement at checkpoints. Republican Rep. Bryan Zollinger stated, “This isn’t where we started, it’s where we ended up, and I have concerns about the police state and where (we are) with this bill.”

According to the Idaho Farm Bureau, the bill will be “revamped and resubmitted,” said Rep. Judy Boyle, a Republican rancher, and chairwoman of the ag committee.

An attempt to legalize hemp production failed earlier this year with a tie vote in The House Drug Policy Committee. The Mississippi Hemp Cultivation Task Force was formed as a result of House Bill 1547 and began meeting in July. The committee consists of thirteen members, including the Ag Commissioner.

Topics at their meeting included the University of Mississippi Cannabis Research Program, which looks at “botanical, pharmacological and chemical studies of cannabis,” law enforcement, among other issues. Marshall Fisher, the Commissioner of the Department of Public Safety, at the meeting, stated that it is not regulated enough. Also, it would be difficult to tell the difference between hemp and cannabis, and there is a link between hemp and other drugs, which could lead to deaths in the state.

The task force’s role is to submit recommendations each year one month before the regular legislative session meets. The Mississippi Center for Public Policy stated, “We don’t know what the task force will recommend. It includes both supporters and opponents. And of course, the legislature – who will be tasked with acting on any recommendations – will be different next year.”

South Dakota
South Dakota House Bill 1191 would have legalized the growth, production, and processing of industrial hemp and derivative products in the state. Before the bill’s approval, several people opposed the measure, including Attorney General Jason Ravnsborg, Department of Health Secretary Kim Malsam-Rysdon, Highway Patrol Superintendent Craig Price. All expressed reservations about how their departments would enforce hemp and drug laws, including CBD oil. The bill passed both the state senate and house but was vetoed by Governor Kristi Noem in March. An attempt to override the veto passed in the House but failed in the Senate.

Governor Noem writing an opinion piece for the Wall Street Journal, stated, “many states are experimenting with legalizing marijuana. Until law enforcement can quickly and affordably differentiate between marijuana and hemp, states that have legalized hemp have essentially legalized marijuana as well.”

Noem, who comes from a farming and ranching family, wants South Dakota to have a new cash crop for the struggling agriculture community. She feels that hemp is not the answer and will veto the issue again if it comes up in the 2020 session.

What’s Next
Now with the legalization in 47 states, there remain other problems with the industry, including lacking the infrastructure to process hemp into extracts and other products. Licensed hemp production acreage increased by 554% in 2019, according to the advocacy group Vote Hemp. According to Hemp Industry Daily, there is a significant potential of hemp rot because of supply chain issues, “ranging from banks that are reluctant to finance hemp and CBD businesses to farmers who have not secured contracts from buyers, reported Crain’s Chicago Business.”