Weeding Through Hemp Production Regulations
Hemp is an interesting plant. It is the same plant as “wacky tobaccy,” cannabis sativa, but without the high tetrahydrocannabinol (THC) levels. Thus, it is not used for psychoactive effects. Instead, hemp produces sustainable materials, medicines, and foods.
This amazing plant is used for anything from a concrete alternative (hempcrete) to a healthy meal. Also, hemp cannabidiol (CBD) has been shown to help with an array of health issues, such as epilepsy and insomnia. Additionally, according to the Stockholm Environment Institute, hemp production has been shown to improve soil quality and requires less water than other crops. But for nearly seven decades, it was impossible or illegal for farmers to cultivate hemp.
This all changed with the 2018 Farm Bill. The Farm Billed removed hemp from regulations under the Controlled Substances Act. So, for the first time since around the 1940s, growing hemp became possible and practical for farmers. But, of course, there are still many regulations around growing this crop.
In Pennsylvania, hemp is regulated through the Controlled Plants and Noxious Weed Law. Hemp is considered a Controlled Plant, and therefore growing it requires application, documentation, and testing, among other requirements. To legally grow hemp, farmers must first apply for a growing permit through the Pennsylvania Department of Agriculture (PDA). The 2019 application period has ended but should open again in 2020. Permits expire every year, requiring farmers to reapply.
The good news is the application process is straightforward, but still arduous. Applicants must list their names, addresses, and other contact details. Producers must also disclose exactly where they plan to grow hemp. Any hemp growing outside of that area would be a violation of the law and the permit. Furthermore, applicants must complete an FBI background check. Unfortunately, applicants will be rejected if they or anyone working with hemp have had a felony drug conviction within the last ten years. The applicant must submit a Notarized Personnel Attestation Formattesting to their drug-felony-free background.
Furthermore, the PDA collects an application fee upon applying for a hemp growing permit. The minimum fee is $600 with higher fees for every additional location where hemp will be grown. This fee is non-refundable, even if your application for a permit is rejected. This can be a barrier for many farmers.
The PDA says that any applicant meeting the requirements of the application will be approved. There are no limits on the amount of hemp or the number of growing locations a farmer may have.
After PDA issues a permit, farmers can begin planting. But, the farmer must report to the PDA the exact GPS location of the crops and the crops varieties within ten days of planting. The permittee must also keep an updated map showing the acreage of the cannabis and the boundaries of the cultivation. This map must be saved and available to PDA upon request for at least three years.
Hemp cannot be grown within three miles of an approved medical marijuana growing facility and should not be grown within three miles of a planting for CBD or certified seed. This is to limit cross pollination and contamination. If another field contaminates the hemp farmer’s field, or if the farmer contaminates another field, the farmer could be liable to that grower.
However, farmers should be warned that growing hemp does pose risks. State and federal law require that hemp growers not allow their hemp to exceed .3% THC.
Once the plant had more than .3% THC, it is no longer considered hemp and is illegal without a cannabis growing license. But, the plant naturally produces some amount of THC. Thus, sometimes farmers must destroy entire fields of their hemp because of its slightly elevated THC levels. Furthermore, if the farmer is suspected of attempting to increase THC levels, they could face criminal charges.
Another interesting facet of the hemp industry is the regulation of hemp seeds. If a farmer wishes to reuse seeds from one growing season to the next, the farmer would need to obtain written permission from the seed source. The seed source must also document their authority to grant that permission. Additionally, the seeds must be grown in conditions that meet the requirements of the Pennsylvania Seed Act. The Act has labeling and testing requirements. The Act may require the farmer to register with the PDA’s certified seed program.
There are also regulations around the moving of hemp seeds, and growers can buy seeds through the PDA to ensure they are lawfully buying hemp seeds. Hemp growers should ensure the hemp seeds they buy contain less than .3% THC.
Clones are permitted in Pennsylvania as well. For those non-plant people still reading, that is essentially when a person cuts off a part of a plant and is able to grow another plant from that cutting. But, the farmer must hold a Pennsylvania Nursery License to lawfully clone and sell clones. Clones must be reported to the PDA within ten days of planting. Furthermore, as with the seeds, growers must obtain written permission and verification from the plant source to ensure they are able to take the clone.
Clones can be shipped into PA. However, the plants must be accompanied by a Federal Phytosanitary certificate, a state of origin-issued health certificate or certification that the plants were grown at a state-licensed and inspected nursery. As with the seeds as well, farmers should receive confirmation that the plants will contain less than .3% THC.
Farmers should also be wary of switching their operations to hemp because this is a brand new crop. The specialized equipment is still very new and expensive. Also, best practices are still unknown. It is also important to consider its end uses and access to processing facilities. But that could be a whole separate blog!
Finally, it’s important to note that selling products with added CBD or THC is still prohibited federally, which means growers should be wary before processing or selling hemp for CBD.
Nevertheless, last year, 300 farmers in PA decided to apply for hemp growing permit. As this is only the third year the program is in place, there are still many gray areas and kinks to figure out. But, as always, if you need any help navigating the regulations and requirements, Trellis Legal is here to help!
DISCLAIMER: This blog is meant for informational purposes only and does not constitute specific legal advice or create an attorney-client relationship. Readers should discuss their specific situation with an attorney.