A Farm Bill Discussion with Courtney Moran: Debunking the Miller Amendment

Chief Legislative Strategist Courtney N. Moran, LL.M, sat down with Justin Botillier, CEO of Calyx CPA, to set the record straight on what the proposed Farm Bill and Miller Amendment will mean for the hemp and cannabis industries.

Throughout the webinar, Courtney examines the Farm Bill's base language concerning hemp definitions and testing requirements, dispels myths about the now notorious Miller Amendment, and clears the air about what growers, producers, and distributors can expect should this version of the Farm Bill become law.

Highlights

• The Farm Bill base text adds a new definition for industrial hemp including hemp grown for fiber, grain, microgreens, research, and seeds to produce industrial hemp, and a new regulatory framework for industrial hemp production verification in State, Tribal, or USDA Plans providing for visual inspections, performance-based sampling methodologies, certified seed, or similar procedures

• The base text also eliminates felony restrictions for those designating only industrial hemp production and authorizes the USDA Secretary to issue certificates of accreditation to laboratories

• The Miller Amendment amends the definition of hemp and changes the threshold from a delta-9 threshold to a total THC concentration, including THCA, of not more than 0.3%.

  • This codifies into statute what the USDA has already done in its final rule

  • This definition excludes viable seeds from a plant that exceeds a 0.3% total THC concentration and certain hemp-derived cannabinoid products

    • This creates a new definition for hemp-derived cannabinoid products

"We need transparency, we need clear labeling, we need age restrictions, and this bill is not doing that. We do not see age requirements, we don't see testing requirements, we don't see labeling authorities, concentration limits, we don't see packaging authority. So you have to question: what is the intent behind this amendment? Is the intent consumer safety? Because it's not accomplishing that. So where are we within the process? Now, this is a very quick civics 101 lesson here, but we are at the very beginning stages of the legislative process."

- Courtney Moran, Chief Legislative Strategist, AgHS

Click the links below to read the transcript and download the PowerPoint slides on the Farm Bill & Miller Amendment!

Transcript

JB:

All right. Justin Botillier, CEO of Calyx CPA, here once again with Courtney Moran, owner and operator, attorney extraordinaire with Earth Law. And she is representing the hemp industry. And I've known her for quite some time as an advocate for the hemp industry for years now, specifically working in Oregon. But I think you're nationwide, right, Courtney?

CM:

Correct. We are nationwide.

JB:

And you spend some time in DC and doing some lobbying activity and. Yeah. So the reason why I asked you to be here today, again is that I don't think people realize the drama that is happening in terms of the farm bill and what it means to the cannabis industry at large. I don't think it ever meant to be interpreted or used to the extent that it is in terms of businesses implementing essentially a legal marijuana, interstate marijuana business, which is happening now under this idea of the fact that the farm bill allows THCA to be transacted and most, well, federally, unless each state has its own hemp program limiting what can be sold in their state as under hemp. And so right now, there's many states that will allow the sale of THCA, which. And, Courtney, I'm sure you're going to go over this, but I'm just going to tell you what I know, and then we can move on to what you know, because you know more than me. So. And THCA, as people in the cannabis industry know, should know that THCA is the precursor to THC.

JB:

It just simply has to be combusted, and then it becomes THC. And so, essentially, if you go online right now and you want to buy marijuana, you can type in THCA hamp and order online, and then shortly after, you'll be delivered marijuana products, which is great, except for it's completely unregulated. There's so far no testing requirements that I know of, no packaging, childproof packaging requirements. And it really does undermine the legal or the regulated programs in each state that has their regular programs. It undermines those businesses that have went through the rigmarole and the difficulty of being in a state operating a cannabis business in which there's no ability to go outside of the state lines and therefore, significant barriers to having a successful business. I think that's all I'm going to say about that, Courtney, and I think I want to just turn it over to you. Do you want to introduce yourself a little bit more, or do you want to just get straight to it.

CM:

I'll introduce myself and then respond. I'm Courtney Moran. I am the founding principal of Earth Law, LLC, which is a Portland-based law firm. We practice primarily with hemp clients both in Oregon and throughout the country. And I also am the chief legislative strategist for Agricultural Hemp Solutions, which is a national lobbying firm. We have worked on hemp policy throughout the United States, and I personally have worked on hemp policy for about the last ten years. But over the last eight and a half years, being an actual registered lobbyist, I can proudly say that we just passed our 12th pro-hemp piece of legislation.

JB:

Awesome. Yeah, right on. Okay, well, I'm going to go ahead and bring up your slides and then fire away.

CM:

So, the slides that I put together are an overview of where we're at with the farm bill so far with the house, and really the next steps and where things potentially can be going with the farm bill. And I know that you started this presentation and the conversation regarding THCA, and that's really one of the main pieces of the changes that have come forth through the house markup, the, you know, very publicized Miller amendment, but also the most recent letter from the DEA and their commentary regarding the control status of cannabis-derived THCa not meeting the definition of hemp. And I don't have that included within the slides. It's something we can talk about. But I think what you started this conversation with, Justin, is really important about the different perspectives, not only from within the hemp industry, but external to the hemp industry, about what is and has happened within the marketplace, what is and has not happened in regards to regulation, both on federal and a state by state, and, you know, tribal level. And so, of course, there are different interests. Right. There's competing interests.

CM:

There seems to be a lot of universal concern, a lot of universal coming together in that. Regardless of what sector or what position you're coming from, everyone wants to see clarity. We want to see very clearly defined regulatory authority. We want Congress to help push the agencies into implementing regulations that not only makes sense across the board, but that are consistent with legislative intent, are protecting our farmers, protecting our manufacturers, protecting our businesses, as well as the public and our consumers. That seems very consistent. What is inconsistent are the competing interests. Right. The marijuana industry has very specific concerns.

CM:

Understandably, they do have a very regulated system that they operate in, a very regulated and restrictive market. It is, you know, only within the bounds of their states. Whereas hemp, you know, we have a. Not only a national market, but an international market. We have different interests and concerns coming from regulators. Right? Whether they're cannabis regulators, hemp regulators, health regulators. There's a variety of interests there. We have different interests and concerns coming from law enforcement, what they are and are not able to enforce the clarity or lack of clarity for what they can be enforcing and what is or is not legal within their jurisdictions.

CM:

Of course, we have different concerns and interest coming out of FDA, USDA, and then within the hemp industry itself. We have our grain sector, we have our fiber sector, we have our broader cannabinoid sector, but even that sector comprised of different interests, whether it's, you know, the intoxicating hemp side or the non-intoxicating hemp side. So we have so many different interests coming to the table, as well as, of course, our regular legislators. And so we're seeing right now this all come to a head. Now, what has happened thus far within the house, I think pretty consistently across the board. I mean, yes, there are some groups that are very happy with what's happened so far. Most groups are pretty concerned. And I would say given the different opinions regarding what this bill does and does not say, says to me that this language so far is not providing the clarity that the industry and other interests are very much looking for.

CM:

Given that there are so many different opinions and interpretations of this language so far, that to me, this signals that if something like this were to go through, it's just going to create additional confusion within the regulatory sense. When we're working with our agencies, both federal and with state, how are tribes going to implement this into their programs? What can law enforcement say is or is not legal? How are different lawyers going to be interpreting this for the marketplace? So we definitely need better clarity. But what that is obviously is yet to be seen. So with that, I'm going to dive into this overview. Did you have any comments, Justin, though, before I jump in?

JB:

No, I think, I think I'm looking forward to your presentation for sure.

CM:

Okay, awesome. So here's just links to my websites, earthlawllc.com and agriculturalhempsolutions.com. you can read our blogs, connect with our teams, and we are here to help provide guidance and assistance to your teams. So I wanted to start with an overview of the timeline to date of what has happened and what, what I did not put in this timeline is just a little bit of the history. So we have 2018 farm bill signed into law December 20 of 2018. That authority theoretically expired on September 30 of 2023. That 2018 farm bill was later extended through Continuing Appropriations act, through Congress, and it is now. We still have the 2018 Farm Bill authority through September 30 of 2024.

CM:

So nothing has changed, right? The current landscape is exactly the same as it was pre all of this activity with the House Ag committee. I think it's important that folks understand nothing has changed yet. These are all conversations about what potentially could be happening and what the changes could be. So it is important that businesses are staying apprised, that if they need to pivot, that they can pivot. What will happen is yet to be seen. And I'm going to go over the legislative process in a little bit. But whether we get a new farm bill by September 30, yet to be seen, whether this next farm bill iteration will come after the election. Again, a very, very strong possibility.

CM:

Will it even happen in 24? We're hopeful. Again, we don't know. We have to just see what happens and how these conversations evolved. But most recently, on May 1, both the House and Senate Agriculture committees released farm bill overviews and summaries. They were different. You know, one was more of an overview. One was a very detailed summary outlining what was happening within the different titles of the farm bill. They are not consistent not only for the hemp provisions, but other provisions within this massive omnibus bill.

CM:

And very quickly, a step back. I think a lot of folks at this point do understand what the farm bill is, but the farm bill is an omnibus piece of legislation that not only provides agricultural policy, but also funding for specific programs. It's a bill that has usually a five year timeline. The first bills were enacted in the 1930s after the Dust bowl, and it has led to overarching agricultural policy and program funding for almost the last 100 years. So we know this is a bill that is going to pass. There is a lot riding on this bill. Hemp is one very, very small piece of this legislation. And there are other concerns with this legislation.

CM:

But, of course, for our audience and our clients who were, you know, our colleagues who we are working with, these are the important matters. Now, the next step of what has happened was on May 17, the Health Agriculture Committee made public a discussion draft, which is a draft of legislation that is likely to be introduced. Now, what's interesting is that when the actual bill was introduced on May 21, which is HR 8467, the Farm Food and National Security act of 2024, this language was not the same as that public discussion draft. And in specifically, the language regarding the hemp, the hemp clauses, there were different definitions, different authority. And so I think folks read, understandably read the discussion draft on May 17 and saw, okay, we have some protection specifically for our cannabinoid production. We have these new carve outs for industrial hemp. But when the actual bill was introduced on May 21, that language was not necessarily there. So we have a change already within those few days.

CM:

On May 22, a group of amendments were introduced to the House Agriculture Committee. And those amendments were what was up for discussion during the House a committee markup which was held on May 23. Now, part of these several amendments that were introduced was the Amendment 35, which is the Miller amendment, as it was introduced by Congresswoman Mary Miller out of Illinois. Now this amendment was as with 19 amendments total, including that Miller amendment, were adopted on block. And what that means is that all of these amendments were put together into one new amendment, basically, and had that adopted. And rather than these individual amendments getting their own time for hearing testimony and a particular roll call vote, these 19 amendments were adopted via a voice vote and all adopted together. So that is another piece that's concerning about this process. So there was not a roll call vote.

CM:

So whether the committee would have actually had enough votes to pass this amendment on its own and have it approved within the actual House farm bill language, don't know. That day, after about, you know, eleven and a half hours of markup time, the House a committee approved 8467 with the vote of 33 to 21. So now this bill is moved on to committee and is before the house floor. It's not scheduled for the house floor. It is before the house floor. So let's take a quick overview of what the base language of HR 8467 provided for specifically for hemp, and then we'll jump into the Miller amendment. So what 8467 does do is it creates a new definition for industrial hemp, and it refers to hemp grown, excuse me, hemp grown for fiber, for grain, for microgreens, for research, and for seeds to produce industrial hemp. The language of all these different pieces are very similar to the language and the core concepts from the Industrial Hemp act, which I'm very, very pleased to see.

CM:

The bill also provides for a new requirement for producers to designate the type of production as industrial hemp, or hemp grown for any purpose. This provides the ability for states and tribal governments, as well as the USDA, to provide oversight over production, as this bill also creates a new regulatory framework for industrial hemp production. So under a state tribal USDA plan, the new framework provides that if someone does elect to specifically grow only industrial hemp, that the state tribal government or the USDA can provide for visual inspections, provide for performance based sampling methodologies, provide certified seed or other similar procedures to verify that production, rather than going through just the testing authority that we've seen to date. It does require that any producers that elect the industrial hemp designation have to provide documentation to verify that intent of production or undergo a harvest inspection. And it does provide that if someone is producing a crop that does not meet the designation and they cannot verify their intent, they would have to undergo testing. And it also does provide that if someone designates an industrial hemp production but violates that designation, that they would be ineligible to participate in the program for five years. And I see that the bullet got moved here, but it also eliminates the felony restriction for those that are designating only industrial production. So if you designate industrial hemp production, you would not have to go through that background check and you would no longer have those felony restrictions.

CM:

And one last key piece of the base language of 8467 is that it gives us secretary authority to issue certificates of accreditation to laboratories. This piece, this has been a very big discussion since implementation by USDA of the 2018 Farm Bill language. While USDA has provided guidance documents to hold off DEA requiring the laboratory registration for labs to actually conduct testing on hemp crops, that this will move this away and allow USDA to create their own certificate for accreditation for laboratories. This is something that's been universally advocated for basically since 2019. So very happy to see that. And I will just pause here and say thank you to all of the supporters of the Industrial Hemp act of 2023, all of our hemp exemption supporters. The collaboration that I had with National Hemp association and IND Hemp and working on this language, the majority of this language is included, or at least four concepts are included within HR 8467. The concepts were also referenced in the Senate agriculture summary.

CM:

We are very happy to see that all of our hard work for the last two and a half years has led to this language being put into the base text of the bill. I will just say the work on this is still not done. We don't have final language, we don't know what's going forward, and there are potential conflicts with other statutes and acts. So we just want to put that out there. But very much just want to say thank you so much to everyone who has helped us get this far. It's a huge, huge milestone and victory for us so far. So now let's jump into the controversial Miller amendment.

JB:

So can I ask you a question, Courtney, real quick?

CM:

Absolutely.

JB:

You're going to circle back around on the other hemp section. The hemp grown for other purposes at some point.

CM:

I can answer your question now.

JB:

You. You can?

CM:

Yeah.

JB:

Okay, go for it then.

CM:

So hemp grown for other purposes would mean it's not. It's just grown not only for industrial production. So that would be fiber, grain, microgreens, or research. So if you're growing for cannabinoids, you're growing for flour, what have you, and it's not solely for one of those specifically referenced intentions. Right. Fiber, grain research and microgreens, then that is why what a farmer would designate hemp for any other purpose.

JB:

Any other purpose. Yeah. So. And then. So that's kind of. And then we're going to kind of address what that means. And if there's going to be limitations imposed on that, that's kind of what I'm anxious to hear about, too. But we can move forward with the Miller amendment for sure.

JB:

Cause I think that's. We're going to keep talking about that. I just am not sure how each of these, like, plays with or interacts with each other in terms of, like, the language and. Cause I'm not really very privy to law, especially government law, except for the tax code, of course.

CM:

But I was gonna say, I hope you know the tax code, I'd imagine. I'm sorry. Yeah, no, it's a great question. So the specific authority around that designation is in regards to the state and tribal plans regulating production, the USDA plan regulating production, and just in regards to requirements that must be within the plan, is that it requires that farmers designate on their application, am I growing solely for industrial hemp or am I growing hemp for any other purpose? Okay, the reason for that is because if a farmer is electing that they are growing only industrial hemp, then they fall into this new regulatory framework that the state or tribe or USDA can implement. Meaning moving away from that mandatory testing and going to the visual inspections, the performance methodology certified.

JB:

See, there's like a little bit of a loosening. A loosening up on the industrial side. The industrial. The truly industrial hemp side of things.

CM:

Correct. Exactly. Exactly.

JB:

That's what I got from. That's what I got from your presentation. And then. But then, of course, there's the other. And the other is what my, you know, the people who are watching this video that maybe have been turned on to this, but by us, they're who are operating in a regular, regulated framework and who may not be. I definitely work with hemp producers that are, you know, in the other category. So I'm anxious to learn more about that. But please continue.

CM:

No, it's, it is an excellent question, Justin. And part of this also is that, you know, in looking at this regulatory or the statutory text, I mean, I'm literally looking at three different pieces of legislation to merge them together, to read what this language is actually doing. And I know it's, it's complicated to review this and to look at the details of this, but that piece specifically is not creating any sort of restriction on anyone. It's really just a designation to open up the door for easier regulations on industrial hemp. But it's also an election right by that farmer to what their intent is for production that season and because it changes their regulatory authority and requirements or the oversight over them and the requirements. So removing that felony restriction, no longer having to go through those background checks, adding another level of enforcement. So if somebody was to elect that they were only growing industrial hemp, but then grew flower, grew cannabinoids or grew four flower, obviously there's going to be flour on the plants, but grew four cannabinoids and circumvented, you know, for example, the testing or the inspection or the felony verification background checks. And they are electing that they would be in that one strike.

CM:

You're out for five years and an eligibility period. So that where the nation is coming from.

JB:

Yeah. So I mean, and then certainly there will be, there are people who grow for non, the non intoxicating cannabinoids, at least back when the farm bill was first passed legalizing him, we had a big influx of CBD, CBG and some other non intoxicating cannabinoids that were being grown in bulk through biomass and whatnot. And it was a bit, a big rave for a while, but now I think it's just kind of become more of a CBN THCA market. And that's what people are, are growing the non industrial hemp for. And so I'm just curious where, what that is going to, how that's going to play out.

CM:

Excellent point. Excellent question. I do still have clients that are growing just CBD, just CBG, just the other minor cannabinoids that haven't explored into the other isomers or into THCA. So that market is still there. Right. I think a lot of the focus and a lot of the transition over the last few years has been into the, the isomers and the THCA, which is what the main questions are regarding. I don't foresee specific production level problems for those with cannabinoids that being said, we do need to look at this new definition. What?

JB:

That really? Yeah, I see, I see. It makes it pretty plain right there. Yeah.

CM:

So. So let's dive into the Miller amendment. So the Miller amendment is, you know, it's only a few pages long here, but it's very impactful and yet does not provide that much clarity. Now, the first thing that this Miller amendment does is it amends the definition of hemp. So it changes the definition that we have been operating under for the last, almost six years with the 2018 farm bill. And it changes the threshold from a delta nine threshold to a total THC concentration, including THCA, of not more than 0.3%. Now, my commentary on this is that what I foresee this particular piece doing is really codifying into statute what USDA already did in rule. Right.

CM:

If we look at the USDA final rule, we look at the requirements that every state, tribe, and USDA plan licensee has to operate under. It is under a total THC compliance level at the farm. That's already what is in play at the farm level. So this is a change. It's not that much of a change on the farm. Is it accomplishing the goals that the industry and what I understand a lot of regulators were looking to achieve on the farm? No, but that is what this part of it is doing, of course, because we have operated with just this broader definition of hemp from the 2018 farm bill. How this interplays with what happens post harvest in manufacturing, in the product level and at the retail level is much more significant and really kind of what's catching all the headlines right now.

JB:

So, and I know we went over that in previous conversations that we've had together. And so you're essentially saying, like, it always has been limited to the 0.3 total THC, but there. But it was at a different level, perhaps, where a state like Wisconsin that successfully defended a hemp grower that was selling THCA from, I guess, federal scrutiny was able to be successful in Wisconsin. Were they reading something different than what, you know, than our interpretation of the Hemphill and what other people's interpretation of it was? Or am I?

CM:

I mean, I haven't read that specific opinion, so I can't. I can't give you an oversight, an overview on that. I'm happy to take a look and follow up with you on that. But when we're looking at what USDA has implemented, that is on the farm. Right. And as of January 1 of 2022, every jurisdiction within the US had to fall under the 2018 farm bill in the USDA final rule. So at the production level, all production to lawfully be harvested as hemp must meet that pre harvest requirement of 0.3% total THC. That's across the board.

CM:

Now, what states have done post harvest varies widely, state to state. And the interpretation of the legality of products post harvest is that compliance threshold at delta nine. And that's what the 9th Circuit has said in regards to, you know, they were looking at delta eight specifically, but saying that the, what is determinative of compliance for meeting the definition of hemp under federal law is that delta nine threshold, which is not necessarily including that THCA, if that, if that helps.

JB:

Yeah, understood.

CM:

So the next piece of the amendment is sub b here, one b, which is exclusions from this new definition of hemp. So the Miller amendment provides that the hemp definition of hemp does not include viable seeds from a plant that exceeds a 0.3% total THC concentration in the plant. It does not include hemp derived cannabinoid products containing cannabinoids not capable of being produced in the plant, cannabinoids capable of being produced in the plant and were synthesized or manufactured outside the plant, and then, as determined by the secretary, quantifiable amounts of tetrahydrocannabinol, including THCA, and then other cannabinoids that have similar effects or marketed to have similar effects as THC. So these are new exclusions from the definition of hemp. So not only do we have that overarching definition move to a total THC standard, we have these new provisions of what is excluded from this definition. Now, I'll comment that some states have similarly removed products from the definition of hemp and define and regulate products differently than on farm production. Oregon's a perfect example. Our definition of hemp specifically says does not include industrial hemp products.

CM:

We still use the term industrial hemp to apply to all hemp. And, you know, not just for the grain and fiber purposes, but we regulate production separately from what's happening at the manufacturing level, what's happening at the retail level. So from my perspective, moving these products and creating exemptions on definition of hemp itself isn't problematic. It's what could happen in not creating additional authority for these products. But what we do also see is that there is a new definition for hemp derived cannabinoid products. So while the definition of hemp has this exclusion, that the definition of hemp does not include these particular cannabinoid products and I'll note also that language, as determined by the secretary, is important, right? Because that means that this statutory language isn't specifically setting the limits of what these amounts are. It's giving rulemaking authority to the secretary to determine what those quantifiable amounts actually are. But if we start looking at the hemp derived cannabinoid products definition, this definition does not have specific limits.

CM:

The hemp drive cannabinoid products means any intermediate or final form products derived from hemp that a either contain cannabinoids in any form and is intended for human or animal use through any means of application or administration, whether inhalation, ingestion, or topical application. So we do have this separate definition for hemp derived cannabinoid products. I find the drafting problematic, that it could be interpreted, that potentially the definition of hemp exclusions are attempting to amend or influence this definition of hemp derived cannabinoid products. But we do still have a separate definition for those products without specific limits or concentration limits set. So I think there is definitely room for different interpretations of what that can mean for regulation and legality. The last piece of the Miller amendment provides updates to the testing authority. So, in the 2018 farm bill, in the language that provides specific authority for state and tribal governments to maintain primary regulatory authority overproduction within their jurisdictions, and also under the USDA plan, their specific language on testing post decarboxylation or other similarly reliable methods at a delta nine THC level, this amendment changes that and removes the delta nine level and then replaces it with a total THC concentration, including THCA. So that's what this Miller amendment does, creates these new definitions and changes the testing authority.

CM:

Now, when I mentioned earlier that this amendment was adopted en bloc and there wasn't specific hearing time for this particular amendment or a roll call vote on this amendment, what we did have were six different members provide testimony, three in support and three opposed. And so I just wanted to, you know, quote these members of the Ag committee in their testimony briefly. So we see, you know, different sides, different perspectives of this amendment. So Congressman Rose, a Republican out of Tennessee, said he commended Congresswoman Miller from for introducing this amendment. Hemp's the product that requires and demands the correct guidelines. If we do not provide these guidelines, we are threatening the safety of Americans. The amendment draws a much needed line between the naturally occurring plant and adjacent particles in enhancing synthetic additives. Combined with the plan placed on store shelves, we must see that these must ensure these products are regulated properly and handled with care.

CM:

Okay, so his commentary is about public safety. Now, if we go to Congresswoman Miller, who was the amendment sponsor, her testimony provides the amendment will close the poll created in the 2018 farm bill that allows intoxicating hemp products like delta eight to be sold. These products are being marketed to children and sending hundreds of them to hospitals. We must stop teenagers and young children from being exposed to addictive and harmful drugs. My amendment would return Congress's original intent for industrial purposes and not intoxicating, again her narrative around public safety. Now, if we see Congresswoman Spanberger's testimony, a Democrat out of Virginia, she again speaks to support, and she references the letter that the 21 attorney generals, attorneys general, sent to the House, a committee regarding their concerns with what was happening within the marketplace and the lack of their ability to enforce different regulations. And what I found interesting is that she said, I support this amendment is related specifically to the benefit that it would have for Virginia farmers as they are trying to understand this ever-changing landscape. Greater clarity is incredibly important, importantly, particularly for fiber hemp producers.

CM:

I find that interesting because this Miller amendment has absolutely nothing to do with fiber production. So by just side comment, but she said that this amendment will give the secretary of agriculture authority to determine permissible levels of THC. She's 100% correct on that. Now, whether this amendment really is providing clarity, I think, is up for debate. But then we have three members of the committee that provide testimony in opposition. So Congressman Nunn, a Republican from Iowa, says, I've heard from growers in my district. They support a stronger framework that includes more transparency, clear labeling standards, age restrictions, and my state has been doing great leadership in this. However, this legislation should not be rushed.

CM:

Underdeveloped policies attached to this legislation without proper consideration does not only the farm fell at risk, but also puts us on a collision course with other departments and agencies. The purposeful markup of today's debate is to share a number of ideas to consider the full implementation implications of each policy. I ask that we take time to consider this properly as this moves forward to the floor. So he is issuing a word of caution that states are, you know, working right now to create this, these additional regulations. And what I think is across the board, that we need transparency, we need clear labeling, we need age restrictions, and this bill is not doing that. Now, Congressman Van Gordon from Wisconsin, he gave a, you know, a very heartfelt testimony, and he's, you know, known to not support recreational cannabis. But his position was that tens of thousands of Americans who have created different businesses, including several within his district, are using these hemp products to feed their own children. They want to make sure that the quality and consistency of the products are across the board.

CM:

They want to be regulated. They do not want to be destroyed. So he is looking at what the impact of this legislation and this amendment really could be on the broader industry. And then we have Congressman Baird out of Indiana, and he expresses his opposition and saying that american farmers around the country invested their time and treasure over six years to develop a domestic supply chain of hemp and hemp products and provides a great opportunity for family farms to diversify their farm income. American farmers deserve certainty afforded with the current definition of hemp. The proposed amendment arbitrarily changes the current congressionally written definition of hemp. The proposed amendment preempts individual states that have engaged to properly regulate these products, and age restrictions and uniform packaging, labeling and testing requirements. Genuine consumer safety concerns with hemp products are actively being considered by House Energy committee and help committees.

CM:

The proposed amendment empowers bad actors who are not concerned with the safety of their product in the age of their consumers. Now we see opposition testimony also with the public safety concern. But looking to what I think several of us see as more of, if there's potentially an attempt to start banning or restricting these products, is that actually going to lead to more of an illicit market than we have currently seen? So I just want to let everyone know. I know I just kind of summarized through these very quickly, but our team has pulled out the testimony from each of these members from the markup. If you go to the agriculturalhempsolutions.com blog, you can read our blog, politicians throwing stones, overviewing the Miller amendment and the House Ag committee markup. And we have links to each of these members testimony. Now, one really key comment that we heard post the markup is from Senator Ron Wyden. And we know that Senator Wyden, he was the chief sponsor with Senator McConnell of the Hemp Farming act of 2018, which was the language put into the 2018 farm bill that legalized hemp.

CM:

And he made the statement to Politico that if we've learned one lesson from the failed war on drugs, recriminalizing these products won't make communities safer or keep the products out of the hands of kids. So he is really looking at this broader picture, and from my perspective, he is really hitting home how Congresswoman Miller's amendment is missing the mark. Her testimony that this is about public safety, her amendment does not provide any public safety. It does not provide any oversight, any verification, testing, anything like that. And so for that to be what is the communicated intent of her amendment that's not getting fulfilled. So what I want to point out is all of the things that the bill and the amendment do not do, and this is, these are things that I have not been hearing in other commentary, reading in blogs and some other social media posts regarding the bill. And this is where my bigger concerns are. Of course, yes, that definition and the exclusions are problematic, especially for particular sectors within the industry.

CM:

The amendment itself, I don't think it's drafted very clearly. I know I've heard that some of the opposition doesn't get drafted very clearly and exactly what they were hoping for. But I think if we're looking to a framework for clear implementation, which has clearly been the issue over the last several years, not only with what's happened state by state, but with FDA and other agencies, it's not getting that clarity that we really need. And so what does the bill and the amendment not do? It does not define total THC. There is no definition for total THC provided. So does that mean we need to look just to the US final rules or Congress going to come up with that definition? We know it does include THC. So is it just that conversion rate from THC to delta nine, or is there something else? It does not protect farmers producing cannabinoids. There's been what I would argue would be a pretty universal move, a few holdouts to get farmers the ability to have their plants protected up to percent total THC limit on the plant.

CM:

This is something we've added personally, have advocated for free adoption of the 2018 farm. But we really tried to get the farm bill up to 1%. But, you know, the 2018 1%, we weren't able to accomplish that yet. But we know, even comments coming from USDA, AsDa, the American Farm Bureau Federation, they have put in their policy books that they support a move to a 1% total THC limit. So that is something that is lacking within, as I mentioned earlier, it does not establish limits for cannabinoids within this new definition of hemp derived cannabinoid products. What's even further concerning is that it does not provide for conforming amendments to other acts that utilize the term hemp. So these new definitions of hemp derived cannabinoid products and industrial hemp conforming amendments to these other acts of the not been provided, it does not remove the felony restriction for producers growing hemp for any purpose. So we've heard, you know, across the board, we've seen the free to grow act that was introduced that would remove the felony restriction across the board.

CM:

This bill is not accomplishing that goal. It does not provide any specific protection for progress materials. And really, the narrative that we've heard from all of that testimony and what we continue to hear from not only industry participants, but from regulators, law enforcement, and even the adult use industry, is that we need consumer safety, we need public health address, we need oversight. And yes, the ED committee has limited jurisdiction. So no, we were not going to get specific FDA authority within the language, within the agriculture committee. But we do not see age gate requirements, we don't see testing requirements, we don't see labeling authorities, concentration limits, we don't see packaging authority. So you have to question what is the intent behind this amendment? Is the intent consumer safety? Because it's not accomplishing that. So where are we within the process? Now, this is a very quick 101 civics lesson here, but we are at the very beginning stages of the legislative process.

CM:

So the US House has introduced the language of a 467. They held committee markup where the amendments were adopted and the language was voted and approved out of committee. Its next step is the House floor, which will still have to be scheduled and voted on. We still need the Senate to introduce their language. They need to provide markup within the AG committee, and then it will again need to go down to the Senate floor for their vote. If the bills are not identical, then they will go to conference where members of both the House and the Senate will be on the conference committee. They will review the language, they will resolve the differences, and they will develop a report, report that back to both the House and the Senate. And then we will have to get final votes from both the House and the Senate.

CM:

And once we have that final vote and approval from each chamber on that conference report and the language that comes back, that will be consistent across the board at that point, then we get to the president's signature. So we do have numerous steps ahead. You know, it's not like this is all happening today or tomorrow, but it is happening and it is in the works. And folks do need to be aware and apprised of what is happening and understand that we can have an impact. Every single member of this industry can have an impact. We've seen, seen over the years how very thoughtful and consistent advocacy does lead to change. And, you know, grassroots support does work. We've seen it happen state by state.

CM:

We've seen it happen federally with the previous farm bill, and even in the last, in this current iteration of the farm bill, with the industrial impact, we're able to, you know, use grassroots support, provide that very thoughtful and strategic lobbying and advocacy. And we did secure that those four concepts within the House based bill. And so we do get to write the story and we can rewrite the story. If it's something that we don't like, we can have an impact. We can change this legislation. But I think collectively, we have to really ask, what is the goal? What is the intent? Is the language actually achieving that intent? And let's collectively and positively frame that conversation.

JB:

Right on. Courtney, thank you so much for your presentation. I mean, that's a lot to unpack. And I think what I've drawn from your presentation is that the drama continues in terms of what is going to happen. I do see what you're saying in terms of, like, does this really protect consumers? And that, and is that what this, is that what the drama is about, or is it interests that have, or businesses that have different interests and are they protecting themselves, like the regulated market? Does it want the Miller amendment to go through? Because it can see that to protect its interests versus the hemp industry at large outside of, in states with unregulated markets that are operating their hemp businesses in these other states? States. And then even I just saw, like, and it is interesting, the Republicans are very much for postponing any kind of additional actions included in the farm bill. And there was even, like, that DeSantis thing, like, Florida was going to implement some sort of hemp restrictions in its state. And he's like, no, that's not going to happen.

JB:

I'm going to veto that. It was interesting to see the people opposed in the various states, they don't have a regulated market in their states, which is so interesting because we're talking about, like, for the most part, what I think we're talking about is intoxicating substances like being produced in these states that don't have regulated markets. And so it's interesting because, like, I don't know, why don't they have regulated markets if they, they're concerned about consumer protection? But I can see how the Miller, it's limited in terms of like, yes, 1% THC. Why can't we do that? That's so reasonable. And I just don't, I don't understand why we, why we haven't gotten there for so long. But I do see what they're trying to do with the Miller amendment. And I think it has to do with, I mean, like, I have an associate, an employee who is talking about how high concentrates of THC is being sold in, like in gas stations and at middle markets and those kinds of things where there isn't any testing or packaging requirements. And so it's kind of interesting that the states that don't have regulated markets are opposed to the Miller, the Miller amendment and, but, yeah, so very good.

JB:

That's a lot to unpack and I'm glad you're like, keeping tabs on it.

CM:

Yeah, absolutely. And, you know, I think it, it is a lot to unpack, and a lot of us had hoped that the upcoming farm bill, and still do hope the upcoming farm bill really is going to provide the clarity and the additional authority for agencies to act to provide this clear oversight and regulatory frameworks, especially in regards to products and work in progress material that has not yet been accomplished. And so, yes, maybe some in the regulated market think that this is victory because it is limiting that broader definition, creating those exclusions, but there is still lack of certainty a, that this language is even going to move forward beyond the House ag committee, but also in what this would mean for implementation. There's a lot of rulemaking authorities still left, even within the specific black and white text. But as I pointed out, there's a lot of things that are not within, in the black and white text. And so I think we can be looking for. Are there other amendments that we could potentially see being moved forward on the House floor? What does the Senate base language provide? What do the Senate, does the Senate Agriculture Committee provide? And so we have a lot of steps forward. But, yes, folks need to be aware.

CM:

They need to be paying attention. They need to make sure they understand what the language is and is not doing and how it can impact their businesses and that if they don't like what they're seeing, now is the time to get involved.

JB:

Yeah. Yeah. It's, it's interesting. It's very interesting because I can, I can definitely see how they don't want to destroy these businesses and push, push these businesses now back into the black market. So, yeah, the drama continues, I would say. And so, Courtney, hey, thank you so much. And we'll all anxiously keep watching that. Thank you for bringing, giving me the heads up on the Miller amendment.

JB:

That's what to watch for. Sure. I think that for the next steps, for the next steps to the run up of the passing of the farm bill, and typically the farm bill gets signed, what, in December?

CM:

It can happen at any time. The 2014 farm bill was signed in February. The 2018 farm bill was signed in December. So it could happen during the lame duck session. You know, there's obviously incentive for both of the committee chairs to pass the bill while they're in power. We know Senator Stavinau, she is retiring. And so this would be her legacy farm bill, if she is able to accomplish this before she leaves. So there's a lot of different interests at play, but there's a lot to yet happen.

CM:

And so I don't want people to be so alarmist that the sky is falling, but I also want them to be very aware of what the bill actually does do and realize that there are competing interests out there. There are folks that want to see these businesses shut down, and there are folks that want to see these businesses stay open but have very clear channels to operate under. And even these businesses, from every conversation I've had with them, they want the clarity. They want the regulatory oversight. So I think that there is a consistent and collective goal of public safety. It's just, how do we accomplish that without sacrificing one business over another?

JB:

Can I ask you one more question? I know we're at an hour, but this is very interesting to me, especially being in Oregon. Oregon has a little bit more like, has provided clarity on what's hemp and what's, or what. Their hemp policy is a little bit more stringent than the farm bill originally of 2018. And I'm just kind of curious because it sounds to me like a legal avenue for interstate commerce of marijuana sales, essentially. Right. Nationally. Nationally. And so how, so, so the companies say, like in Oregon and California, who have got a little bit more of a bureaucratic barriers to entry and into, into this market.

JB:

Do you see how the states can, the companies that are maybe in the regulated market can pivot to this new, you know, more liberal definition of what hemp, non industrial hemp, hemp derived products, how can they pivot so that they can, I guess, leave the regulated market and go into hemp, regular hemp market that is regulated now by the farm bill. I mean, that's what I see. That's what I see. The alternative is to the current, to the Miller, to the Miller amendment, or am I off? I just, that's what I don't think.

CM:

I don't think you're off. There are companies that operate in both channels, you know, some that stay within the regulated system and some that are operating within the hemp space. They have different products and, you know, a very different markets. And some have explored that. Some have left the regulated system and moved into hemp and some are really trying to protect what was created with the adult youth sector. And I think there's incredible value with the adult use sector. I think it's been over regulated. And you can't all these businesses for wanting to protect their investments and the time and energy and effort that they put forward.

CM:

But I think regulators need to start seeing what is going on. And are their regulations actually accomplishing the goals that they say that they're setting out to accomplish, or are they adopting regulations to have regulations and to have regulatory authority and power?

JB:

Right, right. It's to protect. It's to protect the regulated market. I can't see any other, other way of doing it unless, I mean, except for, like, strangely, the states, again, that, that don't have regulated market that are like, no, we want. We want intoxicating hemp products to be sold in our states, but yet. But we don't want it to be under a regulated framework. So that's kind of confusing. But, but I do.

JB:

I do, for the most part, see a lot. I could. I see how the regulated market would be concerned about and want to close that loophole and the farm bill, but it definitely, if nothing changes, I think that there, there's going to be this change, and in how business is being done in the cannabis industry at large is going to have to pivot in a big way. It's going to be interesting to follow that.

CM:

And with the rescheduling, you know, right now, we're in an open public comment period with the DEA on moving from schedule one to schedule three. So what does that actually look like, how our state's going to transition? We know in Oregon, you know, they're really paying attention to make sure that. That our businesses can continue to operate. Can we open up the door for interstate commerce through those channels? So there's a lot in play right now, and I think it's an exciting time. This whole next year is going to be a really interesting change for overall cannabis policy, whether you're operating in the adult use, medical, or hemp space.

JB:

Yeah, yeah, I think that's a good. A very good point right there. That's. That's all you need to do, really, is just allow regulated operators to cross state lines, and then that whole, like, protecting your industry, kind of protecting the regulated market goes away, because now you're on somewhat equal playing field. Not necessarily as easy to get into the hemp industry as it is to own a regulated business in these states that have a regulated program, but to allow them to be able to be at least on the same playing field as the hemp operators. That's, I mean, that's where if you were to, like, try to equalize things a little bit, then I think that then the argument is back to consumer safety and not like, protectionism. It is very interesting. Like, it kind of reminds me of, like, the whole ideal idea of, like, illegal immigration.

JB:

Like, do we, do we give, do we give people who are here illegally, like, what is it, clemency or something like that, like, they get to be citizens? Or do we try to send everybody back across the border, you know, and. Or do you send everybody back to the border? You make it. Or do you make it easier for people to get to become citizens? It's very, very interesting. I don't, I'm not, I'm kind of apolitical. I only pay attention to just these issues. So I'm not sure how it all goes. But again, thank you. Courtney, do you have any final thoughts and feelings? I think you.

JB:

I keep taking the last words, but I'm going to let you have them.

CM:

No, I just want to say thank you, Justin, for having me. I'm very grateful to be able to share this information. I want folks to be informed first and foremost, and they can make their own decisions and opinions. And I hope every business is operating with integrity and putting products out that are safe, regardless of the lack of regulations there. And if we have good actors, then that's going to ease some of the concerns from regulators and from Congress. And I just want to see honesty and transparency in moving forward. And I hope we see a final farm bill that does provide the clarity and the oversight that we're all looking for.

JB:

Right on. The pleasure is mine.

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Check out Courtney's previous discussion with Justin on THCa's legal status in hemp law here.

OR read more about the Farm Bill base language in our previous blog.

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