Farm Bill opens door for hemp legalization in Idaho. But will officials here allow it?

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BOISE (Idaho Statesman) — Go shopping at the Boise Co-op, Albertsons, Whole Foods or other Idaho stores and you can fill your shopping basket with hemp products— flavored hemp seeds, hemp oil bath products, hemp dietary fiber and more.

But wait, isn’t hemp illegal in Idaho?

“Food-grade hemp is totally legal in Idaho. As far as I know, there is nothing illegal about buying hemp hearts at Albertsons,” said House Minority Leader Mat Erpelding, D-Boise. “That is the piece that is weird here. We can buy hemp in our stores, but we cannot grow it in our own state, and that is because of a law that misclassifies what hemp actually is.”

State Sen. Abby Lee, R-Fruitland, says this disparity is impeding Idaho’s agricultural community and its economy. None of those products that are available in local grocery stores have labels that say “made in Idaho” or “Idaho grown.”

“This is denying Idaho’s agricultural community an opportunity. That is our bottom line,” said Rep. Caroline Troy, R-Genesee.

She and Lee are proposing legislation to legalize hemp production in Idaho.

And their timing could not be better. Idaho suddenly finds itself dealing with the legal challenges of being a hemp-free island in the West — and the nation — as hemp interstate commerce increases.

Idaho is being forced to respond because on Dec. 20, President Donald J. Trump signed into law the 2018 Farm Bill which included a provision legalizing hemp. With the new federal law less than eight weeks old, state legislatures are springing into action to join the hemp revolution, which is why Idaho should not wait, say the two lawmakers.

“This is a real game-changer,” Troy said.

What the Farm Bill does

For several years, Republican Senate Majority Leader Mitch McConnell has been pushing to legalize hemp. His home state, Kentucky, was once the nation’s leading hemp producer.

Additionally, legalizing hemp “fits into Republicans’ regulatory message of getting the government out of the way,” McConnell told McClatchy in December.

McConnell successfully pushed for the 2014 Farm Bill to include a provision allowing states to conduct hemp research or pilot programs.

The 2018 Farm Bill’s hemp legalization provisions were sponsored in the Senate by two Kentucky Republicans, McConnell and Rand Paul, and two Oregon Democrats, Ron Wyden and Jeff Merkley.

All four members of Idaho’s Congressional delegation voted in favor of the Farm Bill.

The new Farm Bill gives states the ability regulate hemp production under the following parameters:

  • Hemp that contains less than 0.3 percent concentration of the intoxicating compound THC is no longer a controlled substance.
  • Any state that wants to produce hemp must submit a licensing and regulation plan to the U.S. Department of Agriculture for approval. If a state does not want to come up with its own plan, it can sign on to the federal program.
  • Anyone who wants to manufacture topical or ingestible hemp products must get approval from the U.S. Food and Drug Administration.
  • Hemp farmers are eligible for federal crop insurance and farm loans.

While the new Farm Bill removes hemp from the federal controlled substance list, marijuana, hemp’s more potent cousin, remains a controlled substance.

“The Farm Bill did not legalize marijuana,” Lee said, adding this is important because she and Troy and many other Idaho lawmakers have no interest in trying to legalize marijuana in Idaho.

Is hemp a new ‘gold rush?’

The U.S. is the largest consumer market for hemp products in the world, according to Hemp Business Journal, which estimates the total retail value of hemp products sold in the U.S. in 2017 to be at least $820 million, up from about $200 million in 2012.

“The U.S. remains the largest global importer of hemp products, which includes textiles from China, food and seed from Canada and industrials from Europe,” reported Hemp Business Journal.

In 2016 there were just 9,770 acres of hemp grown in the U.S., nearly all of it in Colorado and Kentucky.

By 2017, there were over 25,713 acres of hemp grown across 19 states. The states with the most acres included Colorado (9,700), Oregon (3,469), Kentucky (3,271), and North Dakota (3,020), according to Vote Hemp’s 2017 hemp crop report.

The 2018 report is not yet out, but Vote Hemp estimates the number of acres tripled to about 78,000 acres in 23 states.

Mike Standlee, a longtime central Idaho farmer pushing for hemp legalization, warned the House Agricultural Affairs Committee on Monday that Idaho could get left behind on what could be a very profitable and viable new crop for the state.

“It is really important that we get that head start because there are several other states that are moving on it,” he said. “For the future of agriculture in Idaho, it is important we bring in new industries. It is not often we see new agricultural products come to market such as the hemp industry.”

Lee said she only needs to look across the Snake River from her home district to see that Idaho is missing out.

“On the Oregon slope they are not growing sugar beets, they are just growing hemp,” she said.

Hemp is not marijuana and other myths

Now that hemp is making a comeback, conversations in Idaho’s agricultural community have changed, Troy said. They’ve gone from almost no interest a few years ago to wanting to know how to make it work in Idaho with the new opportunity provided by the Farm Bill.

But in the public realm, “I still think we have a lot of work to do to explain that hemp does not become marijuana by just growing it longer,” Lee said.

“Unfortunately hemp looks like its neighbor, marijuana,” Thom Brodeur-Kazanjian, an Arizona businessman and cannabis entrepreneur, said during a Feb. 4 presentation from Idaho Farmers for Health to the House Agricultural Affairs Committee. The presentation was informative only. The committee did not take any action.

He told the committee some hemp myths need to be dispelled.

“Hemp and marijuana are the same thing. That is a myth,” he said. “Hemp is a drug. Also a myth. Hemp makes people high. Another myth. Hemp causes death. There are no known recorded history or present day examples that can show us hemp has caused death. Hemp is unsafe for use. Also a myth. Hemp is widely illegal. Also a myth.”

He continued, “Because of the low THC concentration in hemp, it is literally physically impossible for someone to become high from ingesting hemp seed, hemp food products or medication.”

Hemp returns

In the 1930s, hemp was the first billion dollar cash crop in the U.S., Brodeur-Kazanjian told the committee.

Once a popular crop in the U.S. — the federal government had farmers grow it during World War II — hemp fell out of favor when it became subject to a federal marijuana tax in 1937 (yes, this is not the first time marijuana has provided a revenue-generating tax). Then it was declared a controlled substance in 1970.

Most commonly associated with food, medicinal and textile uses, hemp also has thousands of industrial uses including building materials, bio-fuel, animal feed, paper and plastics.

Porsche recently unveiled its new race car, which has a body built from hemp.

“Porsche isn’t the first automaker with this sort of idea, however. Back in 1941 Henry Ford built a prototype with a body made entirely from plastic that reportedly used cellulose from hemp, wheat and soybeans in its construction, although the exact formula has been lost to history,” Fox News reported Jan. 4.

When viewed from an agricultural perspective, there are benefits to growing hemp over some other crops.

“It is a low environmental-impact product with high sustainability,” Brodeur-Kazanjian said.

Hemp is a multi-purpose low-maintenance crop that tolerates heat, frost and low water and is pesticide free with low nutrient requirements, he explained.

“From an ag fit perspective we see a lot of … opportunity,” Brodeur-Kazanjian said.

University of Idaho agricultural professor Garth Taylor agrees.

“Other than legal constraints I do not see any big problem for it in Idaho,” he said. “If there is a market for it, Idaho farmers can grow it.”

The .03 challenge

While growing hemp may be easy, ensuring that each crop consistently tests under the new federal .03 limit could be a challenge.

Any hemp crops that test higher than .03, called “hot hemp,” must be destroyed. Each state is required to include in its plan how it will test hemp crops and destroy those that not not comply.

To ensure hemp crops follow federal and state rules, growers have to use certified seeds.

“I have been hearing there is a real shortage of certified hemp seed,” Troy told the committee.

Lee and Troy see this as an opportunity for Idaho, especially for rural areas.

“This region has been known for decades and decades as a wonderful place for seed production,” she said.

Idaho not only has a lot of success growing seed crops, it also knows how to protect the purity of a brand.

“An Idaho russet potato means something,” Lee said. Idaho’s potato, wheat, bean commissions all work to ensure Idaho products are known for quality and purity.

Idaho could benefit from not only growing hemp, but also processing it, which it already does with potatoes and other crops.

Cross-pollination conundrum

While hemp and marijuana are both members of the cannabis family and are difficult to tell apart visually to the untrained eye, they do not cohabitate well.

If someone in a state where hemp is legal and marijuana is illegal tries to outfox state law by planting an acre of marijuana within a couple hundred acres of hemp, they will be disappointed, Troy said.

“They are not going to want to do that because it will cross-pollinate and ruin their marijuana,” Troy said.

Marijuana strains are carefully cultivated and cloned for purity. Typically only female plants are planted to achieve the best quality. Any cross-pollination with hemp plants taints the marijuana’s purity.

“In some other states you cannot grow hemp within four to five miles of marijuana because it will destroy the marijuana,” Lee said.

The incompatibility of hemp and marijuana growing together has created its own set of problems.

“The animosity between hemp and marijuana growers is real because the potential for disaster is so real. Cross-pollination can encourage seed growth and cause THC levels to plunge in marijuana. Research has found that cannabis pollen can travel between 3 and 30 miles. In a state blanketed by cannabis growth, the prospect of cross-pollination between hemp and marijuana is almost a guarantee,” reported Forbes in a Jan. 31 article explaining how a surge in Oregon hemp production could force marijuana crops indoors.

“If we want to get rid of marijuana, we should just plant hemp everywhere,” Troy joked.

Legal quagmire

The 2018 Farm Bill immediately went into effect with Trump’s signature, which left states scrambling.

Those already well into state-sanctioned production, like Oregon and Colorado, just need to get federal approval of their plans. Those states already undertaking research or pilot programs need to get legislative approval and prepare plans in order to start full production.

While the Farm Bill removes federal restrictions, it does not pre-empt state law, which means hemp is still illegal in Idaho. The only thing that can change that is the Idaho Legislature or a citizen initiative.

But the federal government declassifying hemp has created another problem for some states, including Idaho: When is someone trafficking an illegal substance and when are they transporting a legal crop?

Idaho is the only state in the West that does not allow any cultivation of hemp for commercial, research or pilot program use. As Idaho’s neighboring states increase hemp production, that means they are buying and selling seeds, plants and processed product from each other, which means transporting it across states lines.

When the Farm Bill became law in December, it not only removed hemp from the Controlled Substances Act, it provided protection for the interstate commerce of hemp, meaning states cannot prohibit its transport or shipment.

And that detail just landed Idaho in federal court.

What Idaho State Police recently heralded as the state’s biggest marijuana bust could turn out to be a bust for law enforcement if it turns out ISP seized more than three tons of hemp.

The owners of the product seized by ISP quickly sued the state in federal court, saying the shipment was not marijuana, but now-legal hemp, showing how unprepared Idaho is for dealing with the recent federal legalization of industrial hemp.

The same situation happened about one month earlier in Oklahoma where authorities made that state’s largest marijuana bust – 17,258 pounds loaded on a semi-truck en route from Kentucky to Colorado. But the defendants say it is hemp, not marijuana.

Both of those cases are pending while authorities conduct thorough testing of the product and the courts decide how to rule.

Lee and Troy agree Idaho law enforcement need better clarity on what to do, which is why Idaho needs to help them out and decide now if it is going to legalize hemp.

Lee explained under the Farm Bill, if the Legislature approves legalizing hemp, both the governor and the state law enforcement agency need to sign off on it.

But Gov. Brad Little and Idaho State Police have not weighed in on the issue.

“I need to be convinced the production and shipping of industrial hemp is not a front to smuggle marijuana into and around the state. We need to ensure the health and safety of our citizens and law enforcement officers,” Little told the Statesman in a written statement.

“We take no position,” said ISP spokesman Tim Marsano.

What’s next for Idaho?

Jonathan Parker, a lobbyist representing Idaho Farmers for Health, which was created about a year ago to help legalize agricultural production of hemp in Idaho, told the committee just one thing needs to change for Idaho to participate in the hemp boom.

“We have a very old law that does classify hemp as a drug,” referring to a 1937 Idaho statute. Even though the federal government just declassified hemp as a controlled substance, Idaho law still considers it one.

Sen. Lee and Rep. Troy have put together a bill that removes hemp from Idaho’s controlled substances list and legalizes it for production in alignment with the 2018 Federal Farm bill.

Troy has started a petition in support of the legislation at www.change.org: Idaho – Say “NO” to drugs – say “YES” to Hemp.

Lee and Troy said they would not have brought forth the bill without the support of Idaho’s agricultural committee. The Idaho Farm Bureau and American Farm Bureau support legalizing industrial hemp production.

Parker told the committee Idaho is one of just “three states with a blanket ban” on hemp and that needs to change. The other two states are Kansas and South Dakota, according to Parker.

“We need to change Idaho code. We need to declassify this old law. Declassify hemp,” he said. “That is it. Then leave it up to us. Leave it up to these farmers who care about Idaho agriculture, their kids, their future generations.”

Parker continued, “If we do not act quickly, and because we do not meet again until next year, I firmly believe we need to do something now because the opportunity and potential exists out there for this to be a booming economy that Idaho is uniquely qualified for and if we do not change it, Idaho will be left behind on this.”

This article was originally published in the Idaho Statesman. It is used here with permission.

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