2018 farm bill industrial hemp CBD
Uncertainty continues for hemp legalization.

On September 30, the Agricultural Act of 2014, more commonly known as the “2014 Farm Bill” (the “Farm Bill” or the “Act”) expired before the enactment of its potential successor, the Hemp Farming Act of 2018 (the “2018 Farm Bill”)—it is also unlikely that the 2018 Farm Bill will be revisited before the November elections. The Conference Committee’s failure to meet this deadline has led to numerous inquiries regarding the legal status of state industrial hemp pilot programs over the next few months, and that of CBD products derived from industrial hemp (“Hemp-CBD”). This post discusses the reasons for which existing industrial hemp pilot programs and Hemp-CBD remain lawful at this time.

Section 7606 of the 2014 Farm Bill created a framework for the legal cultivation by states of “industrial hemp” without a permit from the Drug Enforcement Administration (the “Hemp Pilot Programs”). Broadly speaking, the 2014 Farm Bill only protected cultivators registered under a state’s hemp research pilot program, who cultivate cannabis containing no more than 0.3% of THC, and who meet the requirements imposed by their state department of agriculture.

The 2018 Farm Bill, which contains more robust protections for Hemp-CBD, failed to pass last week, in part, because it remained held up in committee. As we explained before, the Senate and the House versions of the bill would first need to be reconciled (the Senate version would legalize industrial hemp in all fifty states whereas the house version is silent on this issue). A reconciled 2018 Farm Bill would have to pass the Senate and the House, before ultimately landing on the President’s desk for signature. Sen. Pat Roberts (R-Kan.), Chairman of the Senate Committees on Agriculture, is hopeful that members of both chambers will resolve those differences during the lame-duck session, the period between the November 6 election and the end of the year. However, until they do, no farm bill technically exists. Therefore, where does this leave existing Hemp Pilot Programs?

Although the Hemp Pilot Programs were enacted pursuant to the 2014 Farm Bill, they do not expire with it. Indeed, section 7606 of the Act contains no explicit sunset provision. Moreover, on September 28, the President signed an appropriation “minibus” funding bill (“H.B. 6157”) into law. The law provides, in part, for a continuing resolution through December 7, 2018, for any appropriation bill not enacted before October 1. The Agriculture Appropriations Act of 2018, which expressly prohibits federal law enforcement agencies from interfering with the State Hemp Pilot Programs, is on the list of appropriation bills. Accordingly, Congress’ actions reveal that the Hemp Pilot Programs did not expire with the 2014 Farm Bill on September 30, and that they remain in place, at least until December 7.

The expiration of the 2014 Farm Bill has further exacerbated the confusion surrounding industrial hemp and Hemp-CBD. However, we are hopeful that Congress will enact the 2018 Farm Bill before the end of the year. At the very least, Congress will extend the continuing resolution for appropriation until the chambers resolve their differences. But for now, we must embrace this state of uncertainty and accept that change—whatever it might be—is coming.

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Photo of Nathalie Bougenies Nathalie Bougenies

Nathalie practices corporate law, intellectual property, and cannabis law, focusing on the regulatory framework of hemp-derived CBD products. She enjoys building a deep understanding of her clients’ businesses, industries, and long-term visions, and leverages her broad expertise and international background to help our…

Nathalie practices corporate law, intellectual property, and cannabis law, focusing on the regulatory framework of hemp-derived CBD products. She enjoys building a deep understanding of her clients’ businesses, industries, and long-term visions, and leverages her broad expertise and international background to help our overseas companies with their foreign direct investment into the United States and to help American companies with their overseas legal needs.

In law school, Nathalie also worked as a research assistant for Professor Eric Priest, an expert on copyright law in the U.S. and China, and served as a property law tutor, helping first-year law students solidify their understanding of this topic.

Nathalie was born and raised in Belgium and has lived and studied in Africa, Asia, Europe, and North America. Her international experience offers a valuable perspective to clients whose lives and businesses are increasingly shaped by globalization.

In her free time, Nathalie loves to watch movies at Portland’s independent theaters, lose herself at farmers markets, attend art exhibits, spend time with friends, practice Barre3, and take day trips to the coast.