Recently, The Missouri House of Representatives overwhelmingly voted in favor of a new law (HB 2038) that would allow farmers to grow industrial hemp for commercial purposes. The bill now moves on to the Senate for consideration before, hopefully, being signed into law by the Governor. While my main focus is on the legalization of medical marijuana, any progress made on this front should be considered a victory. So if this becomes law, MO farmers are free to grow, process, and sell hemp and hemp products as they please, right? You mean I can FINALLY get my artisinal elderflower hemp body lotion carefully crafted in St. louis, MO from locally sourced hemp?!
As many of us know, Marijuana is listed as a Schedule 1 controlled substance under a federal law known as the Controlled Substance Act ("CSA"). However, it may come as a surprise to some that, currently, there is no legal distinction between hemp and marijuana. In fact, the CSA uses the exact same definition of marijuana that was established by Congress in 1937 under the "Marihuana Tax Act." Mind you, in 1937 physicians were advertising for cigarette companies!
As a Schedule 1 controlled substance, the growing, production, etc., of hemp is subject to strict federal government oversight. Having said that, recent action at the federal level has begun to carve out specific exceptions to the longstanding policy. Specifically, the Agricultural Act of 2014 ("Farm Bill") allows for the growing of hemp for limited purposes and educational research. Unfortunately, the Farm Bill does not provide for the sale or distribution of the legally grown hemp. Therein lies the problem with Missouri's proposed legislation - it is still at odds with federal law.
Having said that, it is worth noting that the "Consolidated Appropriations Act, 2016” which provides for a Department of Justice budget of $111,500,000 explicitly states none of those funds may be used to go after anyone growing hemp pursuant to the Farm Bill. However, those who are growing hemp and selling it for commercial purposes presumably continue to run the risk of federal prosecution even if such conduct is allowed under State law. This is because the Farm Bill is silent as to whether or not one may sell hemp or products made from hemp grown in the US. Traditional statutory interpretation requires one to assume that if Congress wants to grant a power or right - it'll let you know and explicitly do so. Thus, it must be assumed that the sale of otherwise legally grown hemp is still illegal.
Additionally, there is the Cole Memorandum of 2013 which provided guidance to all United States Attorneys in terms of pursuing criminal activity involving marijuana. The Cole Memorandum identified eight factors to be considered when determining whether to pursue criminal charges. While the Cole Memorandum does not explicitly address hemp, recall that the CSA does not distinguish between marijuana and hemp. Therefore, under the current definition of marijuana, one must assume the Cole Memorandum applies to both marijuana and hemp.
The bottom line, however, is that Missouri’s proposed legislation exceeds what is currently allowed under federal law. Interestingly, Missouri has already taken an antagonistic approach to federal law in this regard by enacting Bill 2238 which allows limited individuals/entities to grow hemp for the purpose of manufacturing CBD oil to treat intractable epilepsy. Of course, this begs the question – if Missouri is willing to directly challenge federal law as it relates to hemp, why would it not do so with medical marijuana?