Attached please find a memorandum from Peter and Trish regarding the farm bill which passed the Senate just minutes ago 87-13. We understand the house could vote as early as Thursday. We believe it will pass, and then it goes to the President's desk for signature.
Peter and Trish provide an initial overview of the bill in this memo. There is, of course, more to report, but we wanted you to receive this quickly.
The key points are as follows:
Please stand by for details. Thanks to Peter and Trish for many months of hard work on these important issues.
Memorandum for UNPA members
From: Trisha and Peter
Re: Farm bill
Congressional negotiators made public late last night the farm bill agreement which was quickly brought before the Senate this afternoon where it just passed 87-13. In short, the compromise includes a modified version of the Senate provision which exempts hemp from the Controlled Substances Act (therefore making agricultural production of hemp legal in certain circumstances), but dropped all the House provisions on SNAP, including the one allowing purchase of multivitamins. The House vote could be as early as Thursday, at which point President Trump would have to sign the bill into law before it is in effect.
We note with some sadness the elimination of the House MVM provisions, truly a frustrating outcome given the level of activity the industry undertook to win its inclusion. This came despite the efforts of industry advocates Senators Hatch and Scott. We will be working with the other trade associations on a go-forward plan to see if there are viable alternatives for making this important change to the SNAP program. Our thanks to all the UNPA members who participated in this grassroots effort.
On the hemp provision, it makes hemp production eligible for certain crop programs. More importantly, it establishes a legal definition of hemp products and includes a modified McConnell amendment which allows States to regulate hemp products based on a state or tribal plan that is approved by the Secretary of Agriculture. This removes hemp from the purview of the Controlled Substances Act.
The definition of hemp is: “cannabis sativa L, or any part of that plant, including seeds, derivatives, and extracts, with a delta-0 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis.”
With respect to the state/tribal plans for hemp production, the conferees indicated they do not intend to limit what is included in the state/tribal plans, other than they must be consistent with the overall provision contained in the farm bill conference report. As an example, more restrictive parameters may be placed by states/tribes, but they are not authorized to change the definition of hemp or put in place policies that are less restrictive. The State plan must include information on locations of hemp production, testing for THC concentration, disposal of plants that are out of compliance, and negligence or other violations of the state or tribal plan. Within 60 days of the plan’s receipt, the Secretary of Agriculture must act on the plan in consultation with the Attorney General, but the final decision is up to Agriculture.
Members please note: this provision does nothing to affect FDA’s views on how hemp or CBD products are regulated under current law and reports that the language would “legalize” CBD sales are erroneous. Indeed, the conferees specifically included language, “However, nothing in this subtitle shall affect or modify the authority granted to the Food and Drug Administration and the Secretary of Health and Human Services under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.) or section 351 of the Public Health Service Act (42 U.S.C. 262), including for hemp-derived products."
An addition to the McConnell amendment is language saying that persons convicted of a controlled-substance-related felony many not participate in a state/tribal plan for ten years following conviction, except for producers lawfully taking part in state hemp pilot programs under the Agricultural Act of 2014. Those who materially falsify information on their applications to participate in hemp product are also ineligible.
If you want to review this in more detail, this is the explanation of the language from the conferees:
(8) Hemp production The Senate amendment provision amends the Agricultural Marketing Act of 1946 to allow States to regulate hemp production based on a state or tribal plan. The amendment requires that such plan includes information on locations of hemp production, testing for THC concentration, disposal of plants that are out of compliance, and negligence or other violations of the state or tribal plan. It requires the Secretary to establish a plan, in consultation with the U.S. Attorney General, for States and tribes without USDA approved plans to monitor and regulate hemp production. The section clarifies that nothing in this subtitle affects or modifies the Federal Food, Drug, and Cosmetic Act or authorities of the HHS Secretary and FDA Commissioner and clarifies that nothing in this title authorizes interference with the interstate commerce of hemp. (Sections 10111 & 10112) The House bill contains no comparable provision. The Conference substitute adopts the Senate provision with amendment, including auditing authority and a grandfather clause regarding program participation. (Sections 10113 and 10114) In Sec. 297A, the Managers intend to clarify, within the hemp production subtitle, that hemp is defined as the plant cannabis sativa L, or any part of that plant, including seeds, derivatives, and extracts, with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis. In Sec. 297B, the Managers intend to authorize states and tribal governments to submit a state plan to the Secretary for approval to have primary regulatory authority over the growing and production of hemp. The Managers do not intend to limit what states and tribal governments include in their state or tribal plan, as long as it is consistent with this subtitle. For example, states and tribal governments are authorized to put more restrictive parameters on the production of hemp, but are not authorized to alter the definition of hemp or put in place policies that are less restrictive than this title. Within 60 days of receiving a state or tribal plan, the Secretary must approve or deny the plan. The Secretary is required to consult with the Attorney General regarding the approval or denial of state plans, but the Managers intend for the final decision to be made by the Secretary. The consultation with the Attorney General should not alter the 60 day requirement to approve or deny a plan. The Managers authorized the Secretary to audit state and tribal compliance with an approved plan and take corrective action, including revoking approval, based on a state or tribal government’s noncompliance, as appropriate. The Managers intend to allow state and tribal governments to appeal decisions by the Secretary pertaining to a state or tribal plan for hemp production and do not intend to preclude a state or tribal government from resubmitting a new state or tribal plan for consideration at a later date. If a state or tribal plan is denied or revoked, the Managers intend for hemp production in that state or tribal area to fall under the Secretary’s jurisdiction as authorized in section 297C. The Secretary is authorized to provide technical assistance to states and Indian tribes to aid in the development of a state or tribal plan. The Managers define negligent and other types of producer violations that require enforcement under a state or tribal plan. The Managers also set limits on who may participate in state or tribal plans. Any person convicted of a felony relating to a controlled substance shall be ineligible to participate under the state or tribal plan for a 10-year period following the date of the conviction. However, this prohibition shall not apply to producers who have been lawfully participating in a state hemp pilot program as authorized by the Agricultural Act of 2014, prior to enactment of this subtitle. Subsequent felony convictions after the date of enactment of this subtitle will trigger a 10-year nonparticipation period regardless of whether the producer participated in the pilot program authorized in 2014. Additionally, anyone who materially falsifies any information in their application to participate in hemp production through a state, tribal, or USDA plan shall be ineligible. In Sec. 297C, the Managers intend to require the Secretary to develop a USDA plan or plans to be implemented in states and tribal territories that forego developing and submitting a state or tribal hemp production plan. The Managers expect the USDA plan or plans to meet the same content requirements as state and tribal plans in Sec. 297B. The USDA plan may contain, as determined by the Secretary, additional practices and procedures that are otherwise consistent with this subtitle. It is the Managers intent that the Secretary have discretion regarding the appropriate number of plans, one or more than one, needed to implement Sec. 297C. The Managers require the Secretary to collect, maintain, and make accessible to Federal, state, territorial, and local law enforcement, real-time information regarding the status of a license or other authorization for all hemp producers, whether participating under a state, tribal, or USDA plan. The Managers encourage the Secretary to develop a memorandum of understanding with Federal law enforcement agencies to define the parameters of this system and to potentially share the costs of such information sharing system. In Sec. 297D, the Managers clarify that the Secretary has the sole authority to issue guidelines and regulations regarding the production of hemp. However, nothing in this subtitle shall affect or modify the authority granted to the Food and Drug Administration and the Secretary of Health and Human Services under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.) or section 351 of the Public Health Service Act (42 U.S.C. 262), including for hemp-derived products. The Secretary is required to consult with the Attorney General on the promulgation of regulations, but ultimately, the regulations shall only be issued by the Secretary of Agriculture. To ensure that the Secretary moves forward with issuing regulations in as timely a fashion as possible, the Secretary shall periodically report to Congress with updates regarding implementation of this title. While states and Indian tribes may limit the production and sale of hemp and hemp products within their borders, the Managers, in Sec. 10112, agreed to not allow such states and Indian tribes to limit the transportation or shipment of hemp or hemp products through the state or Indian territory.