Courtesy of Richard A. Howard, USDA NRCS
OLYMPIA — The Washington State Department of Agriculture finalized rules Thursday for growing hemp, one day after lawmakers approved legislation that threatens to undercut the program before the first planting.
WSDA will start issuing licenses to grow and process hemp May 15. The Senate, however, unanimously passed a House bill Wednesday to take hemp off the state’s controlled substances list, potentially taking away the department’s authority to stop unlicensed hemp cultivation.
The licensing program was set up to protect the seed supply and keep farmers who want to test hemp within federal law.
Unlicensed hemp farmers could gain a competitive advantage by not paying licensing and inspection fees, and increase the risk of hemp and marijuana fields cross-pollinating.
“I think it does raise questions. Our policy team and lawyers will have to look and see how this impacts our program,” WSDA hemp coordinator Emily Febles said.
House Bill 2064’s passage and the finalizing of the WSDA’s hemp rules occurred on back-to-back days by coincidence. But introduces another twist in a state that pioneered legalized recreational marijuana, but had until now moved cautiously on hemp.
Unlike some other states, Washington has tried to fit its program under the limited freedom granted to states in the 2014 Farm Bill to “research” hemp. The Drug Enforcement Administration reaffirmed last summer that despite loosening attitudes, cannabis plants — whether the grower calls them hemp or marijuana — remain subject to the federal Controlled Substances Act.
State legislators apparently acted under the mistaken idea that hemp was no longer a federally controlled substance.
“Under federal law, hemp is not considered a controlled substance. This bill would put our state in accord with that,” said Senate Law and Justice Committee Chairman Mike Padden, R-Spokane Valley. Through a spokesman, Padden referred questions about the misstatement to the bill’s sponsor, Rep. Matt Shea, also a Spokane Valley Republican.
Shea told Padden’s committee last month that taking hemp off the state’s controlled substance list would “harmonize” state and federal laws. A spokesman said Shea was not available Thursday.
“Clearly, the legislators do not understand federal law, which is very clear,” said private hemp consultant Joy Beckerman. “They think they know better than the Department of Agriculture.”
Beckerman has advised policymakers to stay within the Farm Bill, partly to keep hemp farmers eligible for USDA programs, financial services and federal water. “Now we’re in the wild West,” she said.
WSDA policy adviser Steve Fuller had cautioned senators about removing hemp from the state’s banned substances list.
“Our concern is that if the state de-schedules hemp, the state will not have any enforcement tools to deal with someone who chooses to grow hemp without the required license,” Fuller told the Law and Justice Committee last month.
“The experience of other states suggests that this would lead to a great deal of confusion about the hemp being grown in this state and a lack of clarity among law enforcement about the status of cannabis plants,” he said. “The use of non-certified seeds (could) cause some illegal growers to accidentally grow plants that meet the definition of marijuana.”
Gov. Jay Inslee still must sign the bill. An Inslee spokeswoman said the governor’s office is aware of the bill’s potential problems. The governor’s office will work with WSDA and others to explore options, she said.
“If we’re asked to provide input on this, I think we’ll provide some nuanced answers that reflect the complexity of the situation,” Fuller said Thursday. “It does seem to lend itself to some negative consequences.”