In 2014, Kentucky farmer Brian Furnish was looking for ways to diversify his crops. His family had been growing tobacco for eight generations, but the market was withering. If he wanted to keep his farm profitable, he needed something new to grow.
So he helped pioneer Kentucky’s hemp industry, a new crop the state was eager for farmers like him to try, and which showed promise as a high-profit alternative to tobacco. Hemp, he was told, could be used as fiber for clothing and textiles, as livestock feed, and to make an oil that’s used in food supplements. Furnish became the state’s first licensed hemp grower.
A few years later, in the fall of 2017, he sent off samples of his crop for testing. When the results came back he discovered that for some reason – maybe there’d been more rain than usual, or too much sun — five acres of his hemp fields had turned into marijuana. Since marijuana remains illegal both federally and in Kentucky, Furnish had to burn all five acres.
As Furnish knows firsthand, hemp and marijuana are versions of the same plant: cannabis. The only difference is that marijuana contains higher concentrations of a chemical called THC, which causes a psychoactive high when smoked or ingested. But since cannabis can be used for other purposes than to get high, the federal government has decided that cannabis that has only a small amount of THC, no more than 0.3 percent, is a different crop — hemp.
“This whole industry is an experiment,” Furnish said. “We’re not marijuana people … we’re hemp people trying to make a living.”
All forms of cannabis used to be illegal to cultivate. But to help farmers like Furnish, Congress legalized production of hemp nationwide as part of the 2018 farm bill. In a declining farm economy, the crop offers a new source of income for farmers who are under siege because of the trade war with China, dropping commodity prices and a series of natural disasters. The potential economic boom is luring scores of agricultural novices.
But while legalizing hemp has provided new opportunities, it has also created new problems. One of them is that farmers need to keep a close eye on their crops to make sure that the THC level in their cannabis doesn’t creep above 0.3 percent. Even in states where marijuana is legal for adult consumption, hemp farmers who accidentally grow marijuana can’t just turn around and sell it to a dispensary to be smoked or ingested — THC levels for marijuana are typically much higher than what a hemp farmer would see, usually around 15 to 20 percent.
Measuring the THC level in growing plants is a delicate, high-stakes task. It’s one of many issues that have popped up in the past year as the country grapples with how to grow and regulate this brand new crop. The Department of Agriculture is under pressure to overwrite a patchwork of state regulations on measuring THC by setting a national testing standard. USDA has yet to produce federal guidelines that will shape how the new commodity is grown and sold, though the department has said it plans to do so this fall, ahead of the 2020 growing season.
“We all want one thing — that is an equal playing field,” said Kentucky Agriculture Commissioner Ryan Quarles. “What we don’t want is states pitting themselves against each other with different testing measures which may or may not accurately determine if hemp is marijuana or not.”
Hemp proponents like Furnish try to keep a strict distinction between hemp and marijuana. But during the debate over the farm bill, proponents of legalized marijuana made clear that they saw them as connected, that legalizing hemp would be a step toward legalizing production of all varieties of cannabis. So far, that isn’t happening – opponents of legalization in Congress still have the upper hand. It remains unclear how the growing popularity of hemp will factor into the debate over legalizing marijuana.
But on the ground across the country, the exploding number of hemp farmers and proliferation of products containing hemp oil are quickly normalizing consumption of cannabis products, potentially changing the political equation and complicating an already complex legal and policy debate around cannabis in all its forms.
“It is kind of the first step to getting cannabis rescheduled,” said Michael Boniello, managing director of Poseidon Investment Management, a cannabis investment firm. “The industry is just waiting to see how these guidelines are going to play out.”
HEMP HAS A range of uses, but most farmers grow it to produce cannabidiol, or CBD — a compound that doesn’t get you high. CBD is the key ingredient in trendy new products from lotions to gummy vitamins, and companies claim it can alleviate anxiety, pain and treat other health conditions. It’s also trapped in a regulatory black hole at the Food and Drug Administration, which hasn’t explained how it plans to regulate products containing the chemical.
Despite that uncertainty, hemp harvests have exploded in just a few years. In 2014, the first year of Kentucky’s program, farmers planted just 33 acres. This year, Kentucky approved the planting of an eye-popping 56,000 acres across the state.
Sky-high enthusiasm around hemp, which can bring in as much as $2,200 per acre, has helped farmers feel more comfortable about growing a plant related to marijuana, said Jeff Sharkey, a lobbyist in Florida on behalf of the medical marijuana and hemp industries. Farmers by nature are familiar with risk, and the support of Senate Majority Leader Mitch McConnell and endorsement of hemp by the farm bill, legislation widely known by producers, certainly helps, Sharkey added.
“The stigma is slowly being eroded and hemp has certainly helped that out,” Sharkey said. He pointed out that even “very conservative rural potato farmers” are interested in growing hemp.
Hemp is hardy enough to grow in many climates and soils: Montana, Colorado and Oregon also rake in sizable hemp harvests, and many other states are experimenting with it.
“Certainly a lot of people see hope with this crop,” said Laura Pottorff, a program coordinator at the Colorado Department of Agriculture, which has been managing a hemp program since 2014. “That’s part of the gold rush mentality there.”
Because the U.S. hemp industry is nascent, growers often need to import seeds from overseas, mainly from Canada and Europe, increasing the chances that they unknowingly grow a crop more like marijuana than hemp. That puts a farmer’s entire crop on the line: Regulations in many states mandate that a harvest with high THC levels must be destroyed.
“Test early and test often,” Erica Stark, executive director of the National Hemp Association, said she tells farmers. “That’s where a farmer is going to risk failure. If they spike THC levels and their crop is destroyed, they’ve lost thousands and thousands of dollars, and that can be devastating.”
Jay Noller, head of hemp research at Oregon State University, compared varying THC levels to the amount of sugar in fruit, which increases as crops like strawberries redden and ripen. Different varieties of hemp exhibit a range of THC levels, and those rise and fall with weather and other variables that can be hard to control. So growers can figure out only through trial-and-error which types of cannabis are riskier to grow, such as ones that contain “cherry” in the name, like “Cherry Wine” and “Maui’s Cherry.” But there’s a Catch-22: Varieties that are high in THC also produce more CBD, the treasured, high-valued compound farmers covet.
“The amount of THC varies today in any sort of hemp variety because we still don’t have any U.S.-bred stable varieties,” Noller said. “You’re looking at 15, in some cases 25 years, before you have something that’s actually assuredly stable.”
Hemp farmers are risking more than a failed crop and lost cash if their plants test “hot.” They could also get into legal trouble. A Minnesota farmer in June was charged with two felonies after his crop was seized by authorities and tested at THC levels of 3 percent — 10 times the legal threshold for hemp.
Those consequences extend beyond hemp farmers; law enforcement officers have struggled to figure out just what is marijuana and what isn’t. A truck driver transporting hemp in January from Oregon to be processed in Colorado was arrested and charged with drug trafficking at a weigh station in Idaho. The case made its way to the U.S. Court of Appeals for the 9th Circuit as lawyers for the hemp processor, Big Sky Scientific, fought to get the charges dropped and the hemp released from police custody.
The contradictions between federal and state policy have kept the trucking case cycling through the court system. Hemp remains illegal in Idaho, so authorities had the right to seize the truckload, county prosecutors argued. Idaho also has the ability to prohibit transportation of hemp within the state because the product must first be lawfully produced — and the prosecutors argued that’s impossible since even though Congress voted to legalize the crop, USDA still hasn’t approved any state plans for regulating it.
A plea deal was reached with the truck driver in September. The state dropped all drug trafficking charges and the driver pleaded guilty to a misdemeanor for hauling an improperly permitted load. But Elijah Watkins, lead attorney for Big Sky Scientific, complained that Idaho “continues to hold Big Sky’s hemp and is refusing to return it.”
“We are going to state court to hopefully have the issue heard on the merits,” he said.
THERE ARE TWO main methods for analyzing hemp: liquid or gas chromatography, a process that separates and measures the various types of THC present in the plant, said Larry Smart, a plant geneticist and leader of Cornell University’s hemp program. But he explained that the same plant could be tested using both technologies and the final THC measurement could vary. States can choose to employ either testing technology.
Smart and a team of researchers are working to develop ways that farmers can more easily test THC levels themselves in their fields, potentially through infrared technology. Growers may be able to get their hands on that tool in as soon as two years, he said.
When it comes to sampling, every state takes its own approach. In Pennsylvania, hemp fields are tested randomly and department employees visit about 25 percent of the more than 800 fields when the plants sprout flowers.
But in Colorado, random testing occurs at a different point in the season. The top two inches of the plant are sampled within two weeks of harvest. Which parts of the plant that are tested matter: THC levels can also fluctuate depending on how much of the plant is analyzed, from just the top two inches to the entire plant.
Other states are taking note. In Florida, for example, the state agriculture department is in the midst of designing its own hemp program. Holly Bell, the architect of Florida’s hemp market, said the state has learned from other states not to just focus on the farming side of hemp but also the processing, manufacturing and distributing components of the industry.
“That is the approach we’ve tried to take with this program, to be working on them all at once, making sure that they can all interact on a timely basis and be ready for each other when we start the program,” Bell said.
A USDA spokesperson told POLITICO that the draft rule regulating hemp is under review by the Office of Management and Budget and the department intends to have the regulations in effect this fall. “USDA staff are exercising due diligence to address multiple requirements for hemp,” including maintaining records, designing inspections and developing THC testing standards.
Testing THC levels is far from the only challenge facing hemp farmers. The post-harvest stage of hemp is precarious: Freshly harvested plants need to be quickly dried or the crop will begin to mold. Then farmers need to track down a processor to extract CBD or turn the hemp into fiber. But in many places that infrastructure doesn’t exist at the scale necessary to handle the massive influx of hemp, which has federal and state officials on edge.
“In my career in agriculture I think there’s more interest in hemp than anything I’ve ever seen,” House Agriculture Chairman Collin Peterson said at the Minnesota Farmfest in August. “I think this is a crop that has potential and there’s going to be a future. But I am nervous about what’s going on because we don’t have any processing for the fiber part of hemp.”
Vermont hemp farmer Peter Dallison has seen a business opportunity in all the confusion. Many of Vermont’s beleaguered dairy farmers, who have been going out of business as milk consumption has declined and the industry consolidates, were interested in switching to growing hemp for CBD. But Dallison realized that high barriers to entry, especially for smaller growers, and the complications of testing and processing, could keep potential hemp farmers on the sidelines.
So Dallison joined GreenTop Farm, which is testing different varieties of cannabis on its 130-acre farm, monitoring THC levels by testing plants as often as twice a week. GreenTop hopes to supply plants vetted to thrive in Vermont with high CBD and low THC levels and eventually provide services to local farmers to help them harvest, dry and extract CBD.
“This is an opportunity for these guys to make their land profitable again,” Dallison said. “It does give new life to a family farm that really didn’t see an opportunity in their future.”
Meanwhile, supporters of marijuana legalization continue to believe that the growing popularity of hemp and hemp products are laying the foundation for the federal government to legalize all forms of cannabis.
States with approved medical marijuana programs often legalize marijuana for adult use about five years later, said Boniello of Poseidon Investment.
“I look at industrial hemp very similarly,” he said. “It is kind of the first step to getting cannabis rescheduled.”
Liz Crampton is an agriculture reporter for POLITICO Pro.