Agriculture Improvement Act of 2018 (2018 Farm Bill): Hemp Felony Provision Negotiations
Negotiations continue on the Agriculture Improvement Act of 2018 (2018 Farm Bill), the Senate version of which contains the language of the Hemp Farming Act of 2018 (S. 2667/H.R. 5485) providing for full hemp legalization that our Chief Legislative Strategist Courtney N. Moran, LL.M. worked closely on with the offices of Senate Majority Leader Mitch McConnell, Senator Ron Wyden, Senator Rand Paul, and Senator Jeff Merkley.
The Farm Bill Conferees, led by Senate Agriculture Chairman Pat Roberts (R-Kansas), House Agriculture Chairman Mike Conaway (R-Texas), Senate Agriculture ranking member Debbie Stabenow (D-Michigan), and House Agriculture ranking member Collin Peterson (D-Minnesota), have stated that Conference Committee “conversations are productive, and progress toward an agreement is taking shape “expect to have a bill ready for vote during the lame-duck session after the midterm elections in November.
Senate Majority Leader Mitch McConnell remains steadfast in ensuring the Hemp Farming Act language is included in the final bill. No significant concerns over the hemp provisions have been raised by Conferees to date during the negotiations.
However, we and the industry at large have expressed widespread concern over the restrictive felony provisions added during the Senate Committee hearings. Our Chief Legislative Strategist Courtney N. Moran, LL.M. has been negotiating for adoption of an amendment to the felony provisions.
We have looked into the policy in the top 15 states that have produced hemp under the agricultural pilot programs since at least 2016: Colorado, Oregon, Kentucky, North Dakota, New York, Minnesota, North Carolina, Vermont, Montana, Nevada, Tennessee, Washington, Virginia, Pennsylvania, and Maine. The states are listed in order of most production to least production based on the 2017 Vote Hemp Crop Report.
Of these 15 states, 10 states require background checks; 5 do not prohibit felons from participating in the agricultural pilot program; 1 prohibits those who have controlled substances felony convictions within the past 5 years from participating; 7 prohibit those who have controlled substances felony convictions within the past 10 years from participating (consistent with Federal Rule of Evidence 609(b)); 2 prohibit those who have controlled substances felony convictions from participating.
While it is highly unlikely we can achieve complete removal of the felony provisions; we are advocating for an amendment to the provisions that removes the “forever felony” restriction and amends the restriction to those convicted of a controlled substances felony within the past 5 years, consistent with the negligent violations restriction prohibiting participation in the program for 5 years. At a minimum, we are seeking an amendment that the restriction only applies to those convicted of a controlled substances felony within the past 10 years, consistent with Federal Rule of Evidence 609(b). We additionally recommend an amendment should include exception from the restriction for states that currently do not prohibit felons from participation in the program. We propose having State/Tribal Governments include this in their State/Tribal Plan.
We will continue to do whatever we can to help ensure a rationale amendment is made that supports and provides for the integrity of the industry long-term.
(We note that although the 2014 Farm Bill (Agricultural Act of 2014) did expire on September 30, 2018, Section 7606, the provisions establishing legal authority for hemp Agricultural Pilot Programs, remains good law.
Congress has also recently extended the Appropriations protections provided in the Consolidated Appropriations Act, 2018 until at least December 7, 2018. The provisions prohibit federal agencies from using any funds to interfere with the transportation, processing, sale, or use of industrial hemp, or seeds of such plant, that is grown or cultivated in accordance with an Agricultural Pilot Program.)