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California Hemp Cultivation: It’s Complicated

Our California hemp lawyers regularly get asked about the laws and regulations about growing hemp in California, manufacturing hemp products, and shipping those products around the country. I’ve written about the various hemp laws in California and how confusing they are previously (see here and here). Those posts, however, were more geared towards the manufacture and sale of hemp-derived cannabidiol (“Hemp CBD”) products than the actual cultivation of hemp, which is becoming an increasingly important topic in the hemp industry in the wake of the federal Agricultural Improvement Act of 2018 (or “2018 Farm Bill”).

The reality is that California is far behind many other states when it comes to hemp. There are very few laws or regulations here on hemp and Hemp CBD, and most of them take a very restrictive view towards what kinds of products are allowed to be sold. There is actual law on the books for cultivation, but it mostly sat there for a few years and is only now coming to light.

To understand the current state of hemp cultivation in California, we need to look back a few years. In 2013, California passed Senate Bill 566, the California Industrial Hemp Farming Act (or “CIHFA”). The CIHFA amended the Health and Safety Code to redefine “marijuana” to exclude industrial hemp, and to statutorily define industrial hemp. It also added a section to the Food and Agriculture Code that would regulate the production of hemp by established agricultural research institutions and commercial cultivators. This latter section was not immediately effective and was subject to federal law authorizing it.

The next year, the federal Agricultural Act of 2014 (or “2014 Farm Bill”) was passed. As readers of this blog probably know by now, section 7606 of the 2014 Farm Bill allowed the cultivation of hemp for research purposes conducted under an agricultural pilot program or by a research institution, in states where hemp cultivation was legal.

After the 2014 Farm Bill was passed, on June 6, 2014, then-California Attorney General Kamala Harris issued opinion 13-1102, which stated “Federal law authorized, and rendered operative, the relevant portions of the California Industrial Hemp Farming Act on February 7, 2014.” The opinion, however, noted that provisions of the CIHFA were “inoperative to the extent that they apply or pertain to any form of industrial hemp cultivation not authorized by federal law.” In other words, commercial cultivation was still not allowed. In 2016, the Control Regulate and Tax Adult Use Of Marijuana Act (or “Prop. 64”) was passed. Prop. 64 formally amended the above California Food & Agriculture Code sections to make the hemp provisions become effective on January 1, 2017.

In 2018, commercial cultivation began to become a reality with Senate Bill 1409. SB-1409 (which we have written about here, here, and here) allowed for the commercial cultivation of hemp upon registration with the state Department of Food and Agriculture (“CDFA”) and county commissioners, effective January 1, 2019. SB-1409 provides relatively sparse testing and other rules (at least in comparison to the highly regulated cannabis industry). After SB-1409 was passed, the CDFA issued proposed regulations in November 2018 for registering commercial cultivators, which appear to be under review with the California Office of Administrative Law (“OAL”) through April 3, 2019.

Part of the reason for the stalling out of the proposed regulations seems to be the 2018 Farm Bill, which was signed on December 20, 2018. The 2018 Farm Bill completely removed hemp from the Controlled Substances Act and require states to submit “hemp production plans” to the United States Department of Food and Agriculture for its approval. But notably, section 7605(b) of the 2018 Farm Bill extends the 2014 Farm Bill through one year after the USDA’s establishment of certain plans (which will be a while from now).

This is a lot to unpack, but the gist is that hemp cultivated pursuant to state law and provisions of the 2014 Farm Bill (i.e., not purely commercial hemp) will be permitted for now, but purely commercial hemp production may not be permitted until the establishment of USDA-approved plans. It will be interesting to see what happens come April 4 if the OAL approves the regulations that allow for commercial hemp cultivation even in spite of no plan being submitted to the USDA. As of now, it’s pure speculation, and I am not aware of any plan submitted by California to the USDA.

This brings us to today. Currently, California law allows for established research institutions to cultivate hemp if they provide certain information to county agricultural commissioners (subject to any state or local prohibitions, of course). The commercial hemp cultivation regulations haven’t been fully implemented as noted above. There are a few big outstanding questions today.

First, what happens if California allows commercial cultivation before or without submitting a plan to the USDA? We might then be in a world similar to cannabis, where the state has adopted laws and regulations that conflict with federal law. If cannabis is any sign, it may be that the federal government does not prioritize enforcement because California would have its own regulations. But there’s no guarantee as to how the federal government would react and in light of the FDA’s December 20, 2018 statement that hemp-derived CBD isn’t allowed in many commercial products, there may be more aggressive federal enforcement.

Problematically, even if California did allow commercial hemp cultivation, that hemp may get siloed in California or just in the nearby states that don’t block shipments. The 2018 Farm Bill does prevent states from interfering interstate shipment, but its terms seem pretty clear that this only applies to hemp produced pursuant to USDA-approved hemp production plans. Some arguments can be made that 2014 Farm Bill-produced hemp can be transported interstate pursuant to this provision, but the 2014 Farm Bill did not allow commercially grown hemp sales.

Another big question is whether hemp grown by an established agricultural research institute in California could be re-sold commercially. The current hemp law as amended by SB-1409 doesn’t speak to this issue, but these institutions may be concerned about selling hemp and may refuse to do it.

Like I have said many times before, the state of hemp law in California is perplexing. That rule is no different for cultivation than it is for the sale of hemp products. It’s always a good idea to consult with experienced California hemp lawyers when considering hemp cultivation or any other sort of hemp sales. As always, stay tuned to the Canna Law Blog for more California hemp updates.

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The Top 10 Popular Marijuana Strains in California

When it comes to marijuana, California is one of the most friendly states in the nation.

Not only is California one of 10 states that have legalized recreational marijuana, they were the very first to legalize medical marijuana back in 1996. With that in mind, using data compiled by Leafly below are the 10 most popular marijuana strains in California.

Ah, the well-known, well-loved, always-great Blue Dream. With Blueberry and Haze lineage, this strain delivers an uplifting, buzzy high, and a deliciously sweet and piney flavor. You can pretty much never go wrong with Blue Dream, which earns its place at the top of this list.

Girl Scout Cookies has shot into prominence in recent years. This is due in no small part to it’s wonderful taste, and euphoric high. This cross between OG Kush and Durban Poison is certainly a modern classic.

This cross between Super Skunk and Chemdawg is known for its strong, earthy and diesel-like smell. With a high that’s energetic and uplifting, while allowing for greater focus, makes it great for daytime use.

OG Kush is one of the most well-know cannabis strains ever, with even most non-consumers having heard of it. The classic combo of Hindu Kush and Chemdawg is easily one of the most loved and sought-after strains on the market.

Despite an unfortunate name that doesn’t do the cannabis movement any justice, Green Crack is an extremely popular and well-loved strain. Its popularity is due to its sweet, citrusy flavor and smell, and it’s strong buzzing high.

Jack Herer – named after the legendary activist and author – is a sativa-dominant cross between Northern Lights and Shiva Skunk that has a legendary reputation in its own right. It has a piney smell and flavor with a backdrop of citrus, and a smooth, even high.

As Leafly puts it: “When Skywalker met OG Kush, a beautiful baby was born. That baby is Skywalker OG, a strain that has earned its way to fame not by name (although that probably helped), but through potency and flavor. The THC content of this indica-dominant hybrid is certainly one to write home about, and I’ve seen the loud earthy and lemon flavors of this hybrid literally raise eyebrows.”

Bubba Kush is a definitive indica that has a potent head high that’s perfect for those trying to relax or get some sleep. With sweet hashish flavors with subtle notes of chocolate and coffee, Bubba Kush is a delight to smoke.

As noted by Leafly: “The predominant OG family has another prestigious strain in California, and its name is Fire OG. A cross of different OG Kush phenotypes, Fire OG takes on a fiery appearance with vibrant orange hair stretching out from a bed of crystal resin.”

SFV OG owes much of its greatness to its OG Kush lineage, but it separates itself with a unique flavor and smell.

The post The Top 10 Popular Marijuana Strains in California appeared first on TheJointBlog.

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New Developments Regarding Oregon Hemp

Last week, the Oregon Department of Agriculture (“ODA”) submitted a letter of intent to the U.S. Department of Agriculture (“USDA”) in which the state agency conveyed its decision to submit a state hemp plan, pursuant to the Agriculture Improvement Act of 2018 (“2018 Farm Bill”).

In addition to legalizing the production of hemp by removing the crop from the list of controlled substances, the 2018 Farm Bill delegates to states and Indian tribes the broad authority to regulate and limit the production of hemp and hemp products within their territories. Specifically, Subtitle G of the new Farm Bill sets forth a regulatory scheme by which states and Indian tribes may seek primary regulatory authority over hemp production. To obtain primary regulatory authority, states and Indian tribes must submit a plan to the USDA Secretary for review and approval. However, before the Secretary may review and approve state plans it must promulgate rules and regulations pertaining to these plans.

As such, ODA Director Alexis Taylor expressed to the Secretary her department’s eagerness to receive direction from the USDA regarding requirements for state implementation plans. Specifically, Taylor raised the need for requirements in solving the growing confusion surrounding interstate transportation of hemp. The ODA Director explained that delays in rule making are subjecting Oregon’s hemp industry to “unnecessary transportation and commerce restrictions” and further stated that “having additional guidance to allow the flow of hemp in interstate commerce would be critical to farmers in Oregon.” Indeed, as we previously explained, the interstate transportation of hemp is lawful for hemp grown under a plan approved by the USDA, pursuant to the 2018 Farm Bill.

The ODA’s letter highlights the state’s robust regulation of the crop and the agency’s desire to remain at the forefront of hemp production. The ODA’s strong aspirations for hemp were also reflected domestically this past week. Indeed, a few days before it released its statement to the USDA, the Oregon department filed temporary hemp rules under Oregon Administrative Rules 603-048. The temporary rules, which became effective immediately, bring the ODA testing rules for industrial hemp intended for human consumption and hemp items in compliance with those of the Oregon Health Authority (“OHA”) as required by ORS 571.330. (That statute provides that industrial hemp intended for human consumption and hemp items must be tested similarly to marijuana under OHA’s rules. The OHA recently adopted new testing rules for marijuana, which forced the ODA to amend its rules.)

In addition to revising the ODA testing rules, the proposed rules clarify recordkeeping requirements. The Oregon department announced it would develop a template that registrant growers and handlers will be able to use to ensure their recordkeeping sufficiently meets ODA requirements. The template will be released on the ODA’s website as soon as it will be available. Finally, as we explained recently, the state legislature will likely pass a hemp bill this session.

For more information on Oregon hemp, please contact us.

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