The 21st Century Tug of War: Hemp VS. The Federal Government

hemp vs the federal government pic 6

The history of Hemp vs. the Federal Government is long. Focus on the last two decades shows how significant these years have been for the hemp industry.

2000

Although the first modern U.S. hemp crops were planted in 1999, they didn’t get mainstream attention until the following year.  This was long before hemp-based CBD manufacturers started popping up on every corner.

Hawaii became the first state to plant industrial hemp.  And it wasn’t taken lightly.  These crops required 12-foot high fences with infrared surveillance.

We laugh now, but the fear of destruction or robbery was very real.  To the untrained eye, hemp can be indistinguishable from marijuana.

2001 

The United States Drug Enforcement Administration (DEA) begins a campaign to make sales of all hemp foods illegal in the U.S. 

The Hemp Industries Association (HIA), Dr. Bronner’s, and other hemp-based CBD product manufacturers who offer hemp products take legal action against the DEA.

It’s the year of the Odyssey. 

It’s hard to imagine less than two decades before the 2018 Farm Bill our country almost swore off hemp forever.

hemp vs the federal government pic 4

Some of the country’s most trusted heritage brand, like Dr. Bronner’s, is suddenly on the same level as Columbian coke lords.

So what got the DEA’s panties in a bunch?  Consumer confusion led to many questioning the content of their favorite hemp products.

Should hemp paper be a controlled substance because it contains a trace amount of THC among other cannabinoids?

It sounds crazy, but this is the exact problem the DEA was wrestling with.  In some ways they’ve passed this concern on to the new hemp regulating body, the FDA.

Both agencies are caught between the needs of the consumers they’re supposed to serve and the industries that live or die by their rulings.

A Long Fight For HIA

Hemp Industries Association (HIA) has been fighting for fewer restrictions on low-THC hemp for going on three decades.

So when the DEA disregarded all protocol around grace period or input from the public, HIA put it’s foot down.  US-based hemp manufacturers were tired of being bullied by their government.

Products with negligible THC, like hemp seeds and foods containing hemp oil, were instantly banned across the U.S. with one press release put out by the DEA.  Hemp manufacturers felt like they were walking on eggshells.

Along with several other plaintiffs, HIA was suddenly a mainstream term.  Americans who hadn’t heard of them in their 8 years of existence were bombarded with news about the drama going down in the hemp industry.

2002

hemp vs the federal government pic 3

On March 7, 2002, the 9th court of appeals ruled in favor of the HIA, stopping the DEA’s ban on hemp products containing any amount of THC.

But the DEA isn’t one to back down.  Just seven months later they tried to compromise by exempting hemp fiber and body care products from their ban.

Food containing any amount of THC, including the modern-day limit of 0.3%, would be illegal to sell under federal law.

There was one glaring problem, though.  Canada’s own public health agency, Health Canada, confirmed that many hemp infused foods had such low THC it was undetectable to the tests they were using.

So one major health org was saying they couldn’t see a reason to ban these foods, all while the DEA remained silent on any kind of limits or rules around detectable THC in hemp foods.

This left companies confused as to whether their products were legal or not.  The DEA’s hypocrisy and zealousness over their treatment of poppy seed manufacturers show how much of a vendetta against the hemp industry as a whole.

hemp vs the federal government pic 13

We all know our favorite poppy seed muffins have trace amounts of opioids.  So why was the DEA terrified of non-intoxicating hemp seeds and oils when poppy seeds didn’t even seem to be on their radar?

In fact, limits on opioid levels in foods were raised during the 90s to make things easier on poppy seed manufacturers.

So why the beef with hemp?

2003

In 2003, the Maine Legislature enacted L.D. 53, An Act to Allow Experimentation in the Cultivation of Industrial Hemp.

Throughout the 2000s the DEA acted like a tricky little kid trying to get what they want by wording their demands in a way that implied much more than what they were saying.

For example, the exemption allowing for hemp body products technically meant makers of these products could go about their business as usual.

But the ban included importing any hemp oil, siphoning off the supply of raw materials to these companies.

So without directly banning all hemp products, they managed to do this anyway by nipping the supply chain in the bud.

The HIA and other manufacturers of hemp products filed for immediate dismissal of the DEA’s ruling.  The court’s previous decision in their favor made them hopeful the law would remain on their side.

hemp vs the federal government pic 9

Until then, their products were not only illegal, they couldn’t even source the materials to make them.

2004

Ninth Circuit Court decision in Hemp Industries Association vs. DEA permanently protects sales of hemp foods and body care products in the U.S

A total 180 from the DEA’s 2001 stance on hemp.  But it wasn’t until one of the biggest hemp advocates decided to stand their ground that helped the American hemp industry get traction.

The DEA and judicial system hadn’t seen eye to eye on what constitutes calling a plant or product marijuana.

Ever since the controlled substance act of 1970, the courts had maintained that non-psychoactive hemp products didn’t schedule I substances.

This discrepancy led to all the legal drama of the early 2000s.

2005  

The Industrial Hemp Farming Act of 2005 is passed by as if it didn’t exist.  If passed, industrial hemp would be vacated from its schedule I designation.

Brands could stop relying on imported raw materials with questionable origins.  At the time Canada was the U.S.’s main supplier of raw hemp.

hemp vs the federal government pic 11

But that doesn’t mean there weren’t companies cutting corners and buying from fly-by-night Chinese suppliers.

And it’s nothing against China.  But their soils often test for high amounts of contaminants that are known carcinogens.

2006  

Acreage has ranged from 48,000 planted acres in 2006 to about 8,000 acres in 2008.  Why the dramatic drop in production?

The hemp industry is still trying to meet demand with the proper supply.  2006 led to overproduction, causing hemp prices to crash.

We can clearly see which years had surpluses and which were corrections to this overproduction.

Hemp’s legal ambiguity didn’t help with determining how much raw hemp really needed to be produced either.

Reliable statistics were hard to come by.  A newbie farmer with dollar signs in his eyes may have torn out all their other crops to grow hemp.

When this surplus inevitably led to falling prices, those same farmers that entered the game were leaving just as fast.

2007 

The first hemp licenses in over 50 years granted to two North Dakota farmers.  2007 was a year of giving and take. Two North Dakota farmers were granted the first licenses to legally grow hemp in the U.S.

hemp-cbd-oil-display

For half a century hemp imports grew but domestic farmers were forbidden from growing it themselves.

This made makers of hemp-infused products reliant on foreign suppliers.  Which is an ironic twist, makes the U.S. powerless in regulating the production of hemp.

So why were these North Dakota farmers going to court after winning state licenses to grow hemp legally in America for the first time in 50 years?

They knew it wouldn’t be as simple as getting their licenses, throwing some seeds in the ground and profiting.

They wanted the assurance the DEA wouldn’t come knocking on their doors claiming they are criminals under the Controlled Substances Act.

Off to court, they went.  But the outcome wasn’t what they wanted to hear.  The courts ruled in favor of the DEA. The agency could continue to regulate hemp as if it were a controlled substance.

2008 

Regardless of the government’s stance, the public’s interest is peaked around the potential uses for industrial hemp.  Hemp as a building material was already being considered as a possible tool in the fight against climate change.

hemp vs the federal government pic 8

The public’s growing interest was in direct conflict with the DEA’s zealous fight against anything and everything cannabis.

2009 

The Industrial Hemp Farming Act of 2009 has bipartisan support but struggles to get approved.

With previous failed attempts every other year since 2005, industrial hemp was now being backed by representatives from both political parties.

House republican Ron Paul joined forces with house democrat Barney Frank to introduce the Industrial Hemp Farming Act of 2009.

But following in the footsteps of the proposed Industrial Hemp Farming Act of 2005 and 2007, the bills never got any real traction.

It would be close to another decade before hemp would be federally removed from its schedule I classification.

2010  

hemp based manufactures pic 33

Hemp Industries Association estimates $419 million in U.S. retail sales of hemp products.  This is at a time when the only federally legal way to obtain hemp was by importing it.

While states and private label hemp manufacturers were fighting against the federal government on the definitions of marijuana and hemp, Americans showed their undying interest in the cannabis plant.

2011 

The cannabis genome is being explored to find the real fundamental differences between intoxicating and non-intoxicating cannabinoids.

2012

A record-setting year in terms of the number of industrial hemp acres seeded in Canada. The number of acres is nine times the acres seeded in 1998 when industrial hemp was legalized.

In under 15 years, Canada’s hemp acreage grew by 900%.  Why is Canada’s relationship with hemp important when discussing U.S. hemp policy?

Besides being the U.S.’s main supplier while our government was deciding its stance on hemp, America’s government looks to Canada’s experience when it comes to setting policies.

Canada is the reason hemp must have under 0.3% THC to not be considered marijuana.  When it came time for Canada’s regulators to set a limit on what differentiated hemp from marijuana, to say 0.3% was chosen at random wouldn’t be far off.

hemp based product pic 22

The number comes from a 1976 study attempting to find what made hemp so much different than marijuana.

But both marijuana and hemp were deeply misunderstood at this time.  The researchers leading this study believed cannabis indica to be the culprit of most THC production.

While cannabis sativa was believed to be more prone to low THC levels, therefore cannabis sativa = hemp.

But that’s not how it works.  Both strains, indica and sativa, have the ability to grow into THC-heavy adult plants.

But this idea that cannabis sativa’s approximate 0.3% levels of THC became a mainstay of what would define hemp as a separate category from marijuana.

It’s the number Canada went with and the U.S. followed suit.

2013

Annual U.S. retail sales of hemp products exceed $581 million. Industrial hemp celebrates fifteen years of legalization in Canada.

2014 

President Obama signed the Farm Bill, which allowed research institutions to start piloting hemp farming.

President Obama helped the hemp industry take its first steps into legality.  Although it was only a pilot program limiting hemp production to licensed researchers, it was the most freedom the industry had been granted in over half a century.

Although limited, the results of many of these studies led to a more bipartisan interest in the hemp industry.

Hemp was no longer an argument between liberals and conservatives.  It was becoming a national conversation.  

hemp vs the federal government pic 12

Rather than arguing in favor of or against, both sides of the political spectrum wanted to know more before making up their minds.

2015

The Industrial Hemp Farming Act is introduced in the House and Senate. This act is the first of several attempts to fully legalize hemp.

2016 

A Colorado hemp farm earns the coveted USDA organic certification.

2017 

Hemp-derived CBD manufacturers are cranking out products faster than ever.. Cannabis research firm Brightfield Group estimates that the U.S. market for the product hit $291 million in 2017 and will swell to $1.65 billion by 2021 – a nearly six-fold increase.

2018

Failed attempt after failed attempt to create hemp-specific laws leads to an updated Farm Bill.

President Trump signs the bill into law on Dec 20, 2018. This removed hemp, along with any of its seeds and byproducts from the Controlled Substances Act. A huge win for the hemp industry

Actually, huge is an understatement.  It was the victory of over half a century of legal battles at the state and federal levels.

Hemp production still has more restrictions than growing other staple crops, like corn or soy, but as long as licensed farmers manage to keep the THC below 0.3% they enjoy full immunity from any legal persecution.

And the industry is pushing for a revision of the current THC limits.  Like the loosened restrictions on opiate levels in poppy seed production, it wouldn’t be a surprise to see the government reform their stance on acceptable THC levels in hemp.

2019 

hemp vs the federal government pic 15

FDA cracks down/warning letters to brands and U.S.-based CBD manufacturers.  Since the 2018 Farm Bill wasn’t passed until the year was coming to an end, 2019 was the first full calendar year since hemp lost its Schedule I designation.

Makers of hemp products and their consumers waited anxiously to see how the FDA would handle regulating an industry the DEA had always been hostile towards.

Would there be mandatory testing?  Watch dogging of interstate hemp sales?  Have hemp products taken off shelves until getting FDA approval?

Maybe if the FDA’s budget for hemp regulation was unlimited, we may have seen more of these outcomes throughout 2019.

But with only about $2 million allotted for hemp and CBD regulation, the agency needed to be hyper-focused with their plan of attack.

Rather than halt the entire industry, causing backlash and lawsuits, the FDA decided to focus on what they could control: misleading and sometimes completely false medical claims.

So it’s no surprise when the agency started handing out warning letters this year, they hit some of the most well-known and growing CBD hemp brands.

Testing hemp products remains an unstandardized process. So rather than trying to shoot a bear with a slingshot, the FDA knew they could afford to come after brands making false health claims.

The Issues With Hemp-Based CBD and Non Hemp-Based CBD

One thing was made clear, only one marjona based CBD product has been given the green light by the FDA. And it isn’t made by a private pharmaceutical company.

Epidiolex is a medication sourced from THC-laden marijuana, not hemp.  But it went through the FDA’s required process for prescription medication approval, something no other CBD brand has done.

So are all other CBD products technically illegal under federal law?  Not exactly. They may not have approval but as you’ve seen you can get CBD added to anything from your cappuccino to a plate of spaghetti and meatballs.

Hemp VS. The Federal Government is On Going & Ever Changing 

hemp vs the federal government pic 14

Brands and retailers of CBD products who don’t wave a flag of outlandish health claims are raking in the profits without falling prey to the watchful eye of the FDA.

Consumers want CBD. Hiding behind false health claims is completely unnecessary and dangerous to those seeking real help for their ailments.

Be upfront.  Let your customers know only one CBD product has FDA approval.  There are no proven health benefits of CBD yet and you should always talk to your primary care physician before starting any CBD regimen.

One private label CBD manufacturer you’ll never have to worry about honesty with is Spring Creek Labs.  With an MOQ of just 250 pieces, write us an email today and have your shelves stocked with your own line of CBD products before the end of the month.