Legislative actions affecting the farming and distribution of hemp products are being passed at an amazing rate. In fact, Law.com reports that it’s rare a day goes by without changes in how the hemp industry is regulated.
The most recent major legislative action happened in Ohio, home of the Rock and Rock Hall of Fame. On July 25, signed Senate Bill 57. This bill directs the Ohio Department of Agriculture (ODA) to draft rules to regulate the licensing and processing of hemp.
This action was music to the ears of Ohioans in the hemp business. Even after the Farm Bill of 2018 was passed, taking CBD off the schedule 1 list of narcotics, stores carrying CBD in Ohio were forced to remove CBD hemp products from their shelves.
But no more. CBD products are back on store shelves in Ohio, and this time for good.
Consistent with the 2018 federal Farm Bill, SB 57 removed hemp from the controlled substances list.
What Happens Now With Hemp in Ohio?
Much to the delight of CBD users, the law allows CBD to enter the state freely and on an immediate basis. However, it will be a while before hemp can be commercially grown or processed in Ohio.
As with any law, it is now over to the agency whose job it is to enforce it. In this case, the torch has been passed to the Ohio Department of Agriculture. The department will create a hemp program which they will administer. They will also set up a licensing structure for farmers who are interested in growing hemp and/or processing it.
Ohio agriculture officials have six months to draft new rules and regulations regulating the industry. From there, the rules will go to the feds for approval. The goal is to get everything in place so farmers can plant their hemp crops in the spring of 2020.
Fusion CBD and Ed McCauley
Fusion CBD co-founder Ed McCauley is only too familiar with the process that Ohio policymakers, hemp farmers, and hemp producers are embarking on.
“In New York, farming hemp was legalized in 2017. We are now in our second year of planting in this state,” said McCauley. McCauley relocated from New Jersey to Orange County, New York just before jumping into the hemp industry in Oregon with partner Adam Kurtz. “Even though it has been a few years in New York, the state is still struggling with the rules and regulations of oversight of this industry,” he further explained.
Fusion CBD operates in several states, including New York, Oregon, Tennessee, and Maryland. McCauley is actively participating in the draft revues and possible edits to the current bill at the New York legislative level.
“We have found that it is easier to farm hemp in Oregon from a regulatory standpoint. However we look forward to smoother regulatory controls in New York in the future,” said McCauley. “Our goal is to take what has been learned and offer it to new states as they navigate the departmental and rule making process.”
One of the challenges for hemp farmers in New York in the past has been getting a license to plant. It looks, however, like Ohio hemp farmers may not have to face that particular obstacle.
Ohio Department of Agriculture Director, Dorothy Pelanda, stated that the agency does not plan to limit the number of licenses issued to cultivate or process hemp.
Despite the challenges that lie ahead for the hemp industry in Ohio, the recent passage of SB 57 is worth celebrating.
An Opportunity for Learning
With the passage of SB 57, universities will now have an opportunity to cultivate and process hemp for research purposes. In fact, that application process is already open for Ohio universities. No hemp cultivation or processing license is required to participate.
One university, Central State University, is ready to start. They are hoping to become Ohio’s first public university to plant seeds under the university hemp research program.
Hemp is an incredibly diverse crop. It is grown for fiber, grain, and cannabidiol (CBD). Hemp can be used thousands of products—food, rope, textile, and of course for health. Ohio Central State’s cultivation will include four varieties of hemp at the research farm. It will provide valuable education to students and Ohio growers alike. It also will provide the ODA and the medical community with access to their current research findings.
The university-sponsored research would help Ohio farmers explore alternative crops to diversify and optimize their farm operations.
Dr. Craig Schluttenhofer, a research assistant and professor of natural products, is leading Central State’s hemp research team. He is focusing on the production, processing, genetics, breeding, and biochemistry of hemp. Schluttenhofer began conducting hemp research in May 2014 at the University of Kentucky.
Hemp Expected to be BIG in Ohio
Ohio is the 47th state to regulate hemp. The Ohio Farm Bureau has predicted it will become the state’s third-largest crop, behind corn and soybeans.
The bill allows for the cultivation and research of hemp as long as it contains less than 0.3% THC. In fact, the legal difference between hemp and marijuana, both cannabis plants, is that level of TCH. Cannabis with a level above .3% is considered marijuana. It should be noted that most marijuana, as you think of it, has levels of THC much higher than .4%.
THC is the psychoactive compound of cannabis and is what that gives marijuana its high. Hemp is a cannabis plant that does not produce intoxicating effects. The Ohio Department of Agriculture will be testing hemp products for safety and accurate labeling to protect Ohio consumers.
In August of 2018, the Ohio Board of Pharmacy asserted that the sale of CBD products fell under its control as part of Ohio’s Medical Marijuana Control Program (OMMCP). This made the sale of CBD without a license unlawful. SB 57 expressly removes all hemp products from the definition of controlled substances under Ohio law and clarifies that neither CBD or hemp are subject to the OMMCP.
The Work Ahead
According to Cleveland.com, the Ohio Department of Agriculture plans to ask the state for $12 million next month. Expenditures would include buying equipment to test plants and hemp products. Between now and when state testing and labeling rules are approved, agency officials will check products for unauthorized claims and conditions that don’t meet food safety guidelines.
Regulation of Hemp Industry and CBD at the Federal Level
As the Ohio Department of Agriculture starts its processes of regulating their state’s hemp industry, the U.S. Department of Agriculture is making its own plans to issue federal rules for hemp cultivation and processing in the entire country.
According to the Federal Register, The Daily Journal of the United States Government, an action to establish rules and regulations for the domestic production of hemp was to happen in August of 2019. The purpose of this action is to implement provisions of the Agriculture Improvement Act of 2018 (Farm Bill)
“I don’t think we are going to see the rules that soon,” said Ed McCauley. “From everything that I am hearing from various people involved in the hemp industry politically, we are probably looking at October at the earliest.”
Sonia Jimenez, the Deputy Administrator, Specialty Crops Program at the Department of Agriculture is the agency contact. She was not able to shed any additional light on the date that hemp farmers and processors can expect to see the regulations.
“USDA is working diligently to issue hemp regulations this fall to allow for a 2020 crop to be grown,” was all Ms. Jimenez was able to say.
“The truth is, what the USDA is putting together are regulatory minimums,” said Ed McCauley. “Things will still look different in each state as they are able to add their own provisions on top of whatever is dictated at the federal level.”
Unintended Effects of Ohio SB 57
As a result of the passage of Ohio SB 57, city law enforcement in Columbus Ohio will no longer prosecute misdemeanor marijuana possession cases and is dropping all pending cases.
That’s the decision of Columbus City Attorney Zach Klein. He announced the move on Wednesday, August 7, just weeks after Ohio Governor Mike DeWine signed the hemp legislation bill.
Klein says the legalization of hemp in Ohio, signed by Governor Mike DeWine on July 30th, prompted his decision.
“The passage of Senate Bill 57 requires a distinction between hemp and marijuana, but our current drug testing technology is not able to differentiate, so we will not have the evidence required to prosecute these cases,” said Klein. “SB 57 has opened up a broader conversation about how we should prosecute minor misdemeanor marijuana possession cases in the future.”
Klein cited the substantial cost of new equipment and testing versus the possible benefit of prosecuting these often-dismissed cases. In addition to the recent ordinance passed by Columbus City Council, as reasons his office will discuss whether to make this new policy permanent.
The ordinance referred to by Klein was passed on July 22 by the Columbus City Council passed to reduce penalties for possessing marijuana.
Offenders caught with up to 100 grams would be fined $10. Those caught with 100 and 200 grams would pay $25. Unlike state law, possession of up to 200 grams will not lead to possible jail time.
A Boost to Farmers, A Problem for Law Enforcement
SB 57 promises to provide a huge boost to Ohio farmers. However, it creates a problem for law enforcement, who are unable to easily distinguish between hemp and marijuana.
Most crime labs in the state only have the ability to detect the presence of THC, not the specific amount.
Even the state crime lab at the Ohio Bureau of Criminal Investigation (BCI) cannot distinguish between the legal and illegal amount of THC.
A spokesperson for the Ohio Attorney General’s Office told 10TV WBNS that the Bureau is working to implement the instrumentation and procedure necessary to measure the quantity of THC. Meanwhile, the passage of SB 57 effectively puts a temporary stop to any prosecution of any marijuana cases statewide.
It will take months for the agency to have the testing equipment required to enforce marijuana laws. This week the Ohio Attorney General’s office sent a letter to every prosecutor in the state. The letter says:
“BCI is in early stages of validating methods to meet this new legal requirement. Suspend any identification of marijuana testing in your local jurisdiction by law enforcement previously trained.”
Experienced Hemp Farmers Aid in Law Enforcement
Fusion CBD owners Ed McCauley and Adam Kurtz are familiar with the confusion experienced by law enforcement between hemp and marijuana. In the past, shipments of Fusion’s own hemp have been held up for long periods of time as local law enforcement tried to sort out what they were looking at. More recently, law enforcement officials have called upon Ed and Adam for advice in this regard.
“There has been great progress working with law enforcement forensics in trying to develop testing that can distinguish marijuana from hemp. This may happen sooner than later at the lab level, but will still be some time before testing of this type is available for roadside stops,” said McCauley.
“In the interest of a successful Hemp industry, both stateside and nationally, we do whatever we can to help,” McCauley concluded.