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USDA Expressly Legalizes the Importation of Hemp Seed

hemp seed import DA
Here come the hemp seeds!

Last Friday, the U.S. Department of Agriculture (“USDA”) released a statement, in which the agency clarified that the passage of the 2018 Farm Bill rendered the importation of hemp seeds legal.

As we previously explained, the 2018 Farm Bill legalized hemp, hemp seeds, and other derivatives by removing them from the Controlled Substance Act. Accordingly, the USDA held that the DEA “no longer has authority to require hemp seed permits for import purposes.”

The agency further explained that the statement aimed to provide assistance to U.S. producers and hemp seed exporters who have repeatedly requested assistance from the USDA.

Indeed, the USDA received numerous comments pertaining to this issue during its March 13 webinar. Senator Jon Tester (D-Montana) was among some of the commentators who requested assistance with hemp importations. According to the Montana senator, the DEA was blocking Montana farmers from importing hemp seeds. USDA Executive Director, Sonny Perdue, explained that while the USDA was in the process of promulgating rules and regulations, farmers registered under an existing state research pilot program, pursuant to the 2014 Farm Bill, were allowed to import and cultivate hemp.

In its statement, the USDA maintained Perdue's statement and further clarified that the agency now holds authority over hemp seeds and aims “to provide an alternative way for the safe importation of hemp seeds into the United States.” Specifically, the USDA set forth ways in which hemp seeds should be imported from Canada and other foreign countries.

Hemp seeds imported from Canada must be accompanied by:

  1. a phytosanitary certification from Canada's national plant protection organization to verify the origin of the seed and confirm that no plant pests are detected; or
  2. a Federal Seed Analysis Certificate (SAC, PPQ Form 925) for hemp seeds grown in Canada.

Hemp seeds imported from countries other than Canada, must be accompanied by a phytosanitary certificate from the exporting country's national plant protection organization to verify the origin of the seed and confirm that no plant pests are detected.

The agency further explained that “Hemp seed shipments may be inspected upon arrival at the first port of entry by Customs and Border Protection (CBP) to ensure USDA regulations are met, including certification and freedom from plant pests.”

As USDA Commission Purdue has expressed on numerous occasions, the hemp rule making process will take some time given the complex nature of the crop and its close connection with marijuana. However, even if hemp won't be grown pursuant to the 2018 Farm Bill until regulations are in place, hemp growers who are registered under state pilot programs, and who comply with the newly released importation requirements, are free to import hemp seeds without the risk of DEA enforcement.

For additional information on the importation of hemp and hemp seeds, please contact our team.

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USDA Expressly Legalizes the Importation of Hemp Seed

hemp seed import DA
Here come the hemp seeds!

Last Friday, the U.S. Department of Agriculture (“USDA”) released a statement, in which the agency clarified that the passage of the 2018 Farm Bill rendered the importation of hemp seeds legal.

As we previously explained, the 2018 Farm Bill legalized hemp, hemp seeds, and other derivatives by removing them from the Controlled Substance Act. Accordingly, the USDA held that the DEA “no longer has authority to require hemp seed permits for import purposes.”

The agency further explained that the statement aimed to provide assistance to U.S. producers and hemp seed exporters who have repeatedly requested assistance from the USDA.

Indeed, the USDA received numerous comments pertaining to this issue during its March 13 webinar. Senator Jon Tester (D-Montana) was among some of the commentators who requested assistance with hemp importations. According to the Montana senator, the DEA was blocking Montana farmers from importing hemp seeds. USDA Executive Director, Sonny Perdue, explained that while the USDA was in the process of promulgating rules and regulations, farmers registered under an existing state research pilot program, pursuant to the 2014 Farm Bill, were allowed to import and cultivate hemp.

In its statement, the USDA maintained Perdue’s statement and further clarified that the agency now holds authority over hemp seeds and aims “to provide an alternative way for the safe importation of hemp seeds into the United States.” Specifically, the USDA set forth ways in which hemp seeds should be imported from Canada and other foreign countries.

Hemp seeds imported from Canada must be accompanied by:

  1. a phytosanitary certification from Canada’s national plant protection organization to verify the origin of the seed and confirm that no plant pests are detected; or
  2. a Federal Seed Analysis Certificate (SAC, PPQ Form 925) for hemp seeds grown in Canada.

Hemp seeds imported from countries other than Canada, must be accompanied by a phytosanitary certificate from the exporting country’s national plant protection organization to verify the origin of the seed and confirm that no plant pests are detected.

The agency further explained that “Hemp seed shipments may be inspected upon arrival at the first port of entry by Customs and Border Protection (CBP) to ensure USDA regulations are met, including certification and freedom from plant pests.”

As USDA Commission Purdue has expressed on numerous occasions, the hemp rule making process will take some time given the complex nature of the crop and its close connection with marijuana. However, even if hemp won’t be grown pursuant to the 2018 Farm Bill until regulations are in place, hemp growers who are registered under state pilot programs, and who comply with the newly released importation requirements, are free to import hemp seeds without the risk of DEA enforcement.

For additional information on the importation of hemp and hemp seeds, please contact our team.

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Pregnancy Complications: Can Cannabis Harm a Fetus?

A pregnant woman wearing a teal shirt holds a cannabis leaf in front of her belly.

Project CBD submitted this public comment, composed by Adrian Devitt-Lee, to California’s Office of Environmental Health Hazard Assessment (OEHHA), which administers the Proposition 65 Program. Approved as a 1986 ballot measure, Proposition 65 requires the state to maintain and update a list of chemicals known to cause cancer or reproductive toxicity.

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Psychedelics & Cannabis Therapeutics

A cannabis flower sits inside of a mushroom on a mule background.

Although it may not be obvious during these Trump-rattled times, we’re in the midst of a psychedelic revival. There is more interest than ever before in experimenting with LSD, magic mushrooms, ayahuasca, ketamine, and other psychedelic drugs.

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Psychedelics & Cannabis Therapeutics

Psychedelic compounds. LSD blotter, iboga root bark, syrian rue, ayahuasca, banisteriopsis caapi, hawaiian baby woodrose, salvia divinorum and morning glory seeds.

Although it may not be obvious during these Trump-rattled times, we’re in the midst of a psychedelic revival. There is more interest than ever before in experimenting with LSD, magic mushrooms, ayahuasca, ketamine, and other psychedelic drugs.

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Industrial Hemp and USDA Organic Certification

industrial hemp usda organic

We’ve written previously about the inability of cannabis companies to receive United States Department of Agriculture (USDA) organic certification for their products (although there are alternative state-level and private certifications available to fill this gap), but what some of our clients are unaware of is that the USDA will provide organic certification for qualified industrial hemp producers.

The USDA provided clarifying instructions in its September 2018 Instruction on Organic Certification of Industrial Hemp Production for the UDSA’s policy regarding the organic certification of industrial hemp production by certifying agents accredited by the USDA National Organic Program (NOP). The UDSA first noted that Section 7606 of the Agricultural Act of 2014 (the Farm Bill) authorized institutions of higher education and state departments of agriculture to establish industrial hemp research pilot programs in states where the production of industrial hemp is legal and subject to certain other conditions.

The USDA’s official policy is that “[f]or hemp produced in the United States, only industrial hemp, produced in accordance with the 2014 Farm Bill, as articulated in the Statement of Principles on Industrial Hemp issued on August 12, 2016 by USDA, may be certified as organic, if produced in accordance with the USDA organic regulations.”

For industrial hemp producers operating in accordance with their state’s industrial hemp program, becoming a certified organic operation will be no different than for companies in any other industry. The USDA lays out five basic steps to attaining organic certification:

  1. The farm or business adopts organic practices, selects a USDA-accredited certifying agent, and submits an application and fees to the certifying agent.
  2. The certifying agent reviews the application to verify that practices comply with USDA organic regulations.
  3. An inspector conducts an on-site inspection of the applicant’s operation.
  4. The certifying agent reviews the application and the inspector’s report to determine if the applicant complies with the USDA organic regulations.
  5. The certifying agent issues organic certificate.

All certified organic farms and businesses must also undergo an annual review and inspection process.

It is important to remember that touting your hemp (or cannabis) as certified organic when it is not is illegal under federal law. As mentioned above, for cannabis businesses there are alternative certifications available via some states or via private third-party certification companies.

In California, for example, SB 94 mandated that the California Department of Food and Agriculture (CDFA) create an organic cannabis program by 2021. In 2018, the CDFA formed the “OCal” project, which is a four-person team within CalCannabis dedicated to establishing that organic cannabis program. The program will be similar to the National Organic Program (NOP). OCal is currently in the information-gathering stage and is set to begin soliciting input from stakeholders this month.

In short, it’s clear that both hemp and cannabis companies value organic principles and are seeking certification. The path to such certification is clear for qualifying industrial hemp companies, but for other cannabis companies, the options are much more limited.

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Did the 2018 Farm Bill Open the Door to Importing Hemp?

industrial hemp import

We get a ton of questions about whether it’s legal to import hemp into the U.S. It’s a complicated question without a clear answer. We do know that the Drug Enforcement Administration has confirmed that the importation of cannabis plant material that falls outside of the Controlled Substance Act’s definition of “marihuana” (e.g., the mature stalks and seeds incapable of germination) is not in violation of the CSA or related laws and regulations specific to importing goods. That limited exception doesn’t cover other parts of the cannabis plant, including hemp flower. The 2014 Farm Bill allows for the limited cultivation of industrial hemp, but that bill requires that hemp be grown pursuant to an agricultural pilot program in compliance with state law. Hemp grown in another country can’t meet those inherently domestic requirements. The 2014 Farm Bill is still in effect as the U.S. Department of Agriculture (“USDA”) is preparing to regulate the commercial cultivation under the 2018 Farm Bill. However, the 2018 Farm Bill has already altered the CSA’s definition of marijuana to exclude hemp and that provision is not dependent on USDA regulation.

The complicated question was addressed in part in by a federal court in California. In November 2015, Innovative Nutraceuticals, LLC placed an order for hemp from Spain to L&M Natural Hemp. L&M shipped the Spanish-grown hemp along with documentation showing that the material contained in each package was cultivated from seeds certified from hemp in Spain and test results showing that the plant material contained 0.2% THC. On December 6, 2015, the Department of Homeland Security (“DHS”) seized the hemp shipment at the Los Angeles International Airport. The U.S. Customs and Border Protection (“CBP”) tested the shipment and found that it contained CBD.

Innovative Nutraceuticals filed a petition with CBP, seeking administrative review of the seizure. CBP denied the petition because CBD is a compound that naturally occurs in marijuana and therefore the shipment met the definition of marijuana in the Controlled Substances Act (“CSA”). CBP also stated that “hemp flowers” are not excluded from the CSA definition.

Despite this, Innovative Nutraceuticals continued to import hemp from Spain and CBP seized shipments in January and November of 2017. On March 14, 2018, CBP again seized an Innovative Nutraceuticals hemp shipment, this time at the Louisville, Kentucky airport. However, CBP informed Innovative Nutraceuticals that the shipment may be released if the company executed a “Hold Harmless Agreement” agreeing not to sue CBP for damages related to the seizure and requiring Innovative Nutraceuticals to pay costs for delivery or retrieval.

On July 2, 2018, Innovative Nutraceuticals filed a complaint against the United States of America in the U.S. District Court for the Central District of California, seeking the following claims for relief:

(1) an injunction and/or declaratory relief ordering the United States government [(the “Defendant”)] not to detain, seize, summarily forfeit, or destroy any future shipments of hemp plant materials containing [CBD] and/or 0.3% or less of [THC];

(2) an injunction and/or declaratory relief ordering Defendant to provide timely notice and a hearing to owners and shippers of detained or seized hemp materials;

(3) declaratory and injunctive relief ordering Defendant not to destroy and to return all seized hemp materials; and

(4) monetary reimbursement for all hemp materials seized and destroyed by Defendant.

In response, the government filed a motion to dismiss all of Innovative Nutraceuticals’ claims.

On March 28, 2019, the Court issued an order (available here, courtesy of Hemp Industry Daily) granting the government’s motion to dismiss Innovative Nutraceuticals’ first and second claim for mootness and granting dismissal of the fourth claim due to Innovative Nutraceuticals failure to identify the government’s waiver of sovereign immunity. Sovereign immunity is a legal doctrine saying you can’t sue the government for damages unless the government says you can.

In denying Innovative Nutraceuticals’ first and second claims, the Court determined the issue was moot. Under Article III of the U.S. Constitution, federal courts can only rule on actual, ongoing cases or controversies. The parties have to have some skin in the game in order for a federal court to have jurisdiction. Mootness occurs when one or more circumstances change making the controversy moot. This can happen due to a change in law, which is exactly why the Court denied Innovative Nutraceuticals first and second claims:

Section 12619 of the 2018 Farm Bill amended the CSA definition of marijuana so that it now includes an exemption for hemp, defined as “any part” of the Cannabis sativa L. plant “with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” Id. Under this new exemption, any future shipments of industrial hemp product containing less than 0.3% THC by dry weight will clearly fall outside the CSA definition of marijuana and will not be subject to seizure.

[. . .]

Any uncertainty as to the legal status of Plaintiff’s shipments under the pre-2018 Farm Bill regime has since been eliminated by the Bill’s amendment of the CSA’s definition of marijuana.

The Court seems to indicate that future importers of hemp will no longer face the seizures that plagued Innovative Nutraceuticals. While makes sense given that hemp is excluded from the CSA’s definition of marijuana, it does not mean that CBP’s days of seizing hemp are over. The difference between hemp and marijuana is not obvious. It is determined based on the presence of a certain compound, THC. Hemp shipments may contain documentation showing that a product is hemp and not marijuana, but that doesn’t mean that the inquiry stops there. CBP will need a way to determine the difference between marijuana and hemp. This could be a problem in practice because hemp, especially in raw form, has a limited shelf life.

The takeaway from the Innovative Nutraceuticals order seems to be that because hemp is no longer a controlled substance under the CSA, that importing hemp does not violate the CSA. In practice, importing hemp still presents significant risk because CBP may still seize hemp on suspicion of it being marijuana. Anyone looking to import hemp into this country should plan accordingly.

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