Breaking Through the Confusion and Clarifying Connecticut’s New Hemp Law

A recent article at the Daily Chronic indicates some confusion still exists. about the legal and practical effects of a Connecticut hemp bill that went into effect July 1.

HB5780 removed any mention of industrial hemp from the Connecticut criminal code that classifies marijuana as a banned controlled substance. From the official summary of the legislation:

"This bill legalizes industrial hemp by removing it from the state “marijuana” and “cannabis-type substances” definitions, thereby removing its status as a controlled substance. Thus, the bill allows industrial hemp to be grown, used, and sold under state law." [emphasis added]

Tenth Amendment Center executive director Michael Boldin put it this way in his reporting on the bill.

"In short, industrial hemp will essentially be treated like other plants, such as tomatoes, by government officials in Connecticut. By removing the state prohibition on the plant, residents of Connecticut would have an open door to start industrial farming should they be willing to risk violating the ongoing federal prohibition." [emphasis added]

In his article for the Daily Chronic, Scott Gacek asserts that the new law doesn’t really change anything, other than allowing limited hemp cultivation in the state for research purposes under federal law.

But while prospective hemp growers still have to take federal law into consideration, by eliminating the state ban, the Connecticut legislature cleared away a major obstacle to widespread commercial hemp farming within the borders of the state. In a recent op-ed, the Hartford Courant nails the new dynamic in the state.

"Hemp can now be grown, used and sold here. This is good news, because hemp is a remarkably versatile agricultural product, but it comes with a major caveat — it is still illegal under federal law. Should an enterprising Connecticut farmer plant a field of industrial hemp, federal agents could swoop in and pull up the (harmless) plants."

If Vermont serves as any indication, some growers will willingly take the risk and defy federal law, knowing the likelihood of prosecution remains extremely low. This is what Boldin means when he talks about HB5780 blocking the federal hemp ban in practice.

In 2013, Vermont passed a hemp act that from a practical standpoint did basically the same thing as the new Connecticut law. When Governor Peter Shumlin signed the bill, he emphasized that hemp cultivation was still illegal under federal law.

“Although the growing of hemp will now be legal under Vermont law, it remains subject to federal anti-drug statutes. That means that farmers who choose to grow hemp do so at their own risk and need to be aware of the possible consequences”

This raises a very important question: if removing hemp from the list controlled substances at the state level doesn’t change anything – why are farmers – right now – growing hemp for commercial purposes in Vermont?

Last summer, Vermont Public Radio reported on the fledgling hemp industry.

"The three hemp plots our reporter visited were all started with seed sold by Europeans and shipped here illegally, including the hemp seeds that Netaka White managed to get from France. “This is our humble hemp patch,” says White, gesturing to the area outside his home in Salisbury where he planted 1.5 ounces of seed. “It measures about eight by eight [feet].  I don’t even know what percentage of an acre that is.”

White expects to get 12 or more pounds of seed when he harvests his hemp crop in late September and he’ll use that to grow even more hemp next year. Most of the Vermont hemp farmers seem resigned that this first crop will go towards establishing a seed supply."

The industry appears to be moving forward this year. As of last spring, one plot in Vermont had 1,000 plants in the ground.

Growers have also harvested crops in Colorado, another state that did away with state prohibition on hemp.

As Gacek rightly points, the passage of HB 5780 does not change hemp’s status under federal law. Industrial hemp falls under the federal Controlled Substance Act of 1970. It technically remains legal to grow the plant, but farmers must obtain a permit from the DEA, a nearly impossible feat. However, the feds have loosened their requirements. In 2014, Congress passed a law allowing for limited hemp production for research purposes if legal under state law. HB5780 opens the door for universities and state ag departments to obtain federal permits and begin pilot programs allowed under federal law, as Gacek explains in his article.

"In other words, lawmakers in Connecticut have authorized industrial hemp cultivation in the state under current federal guidelines. Those guidelines state that an “institution of higher education” or “State department of agriculture” can grow and cultivate industrial hemp, but only under certain conditions…Essentially, House Bill 5780 simply brings the state’s definition of industrial hemp in line with the federal government’s definition…By redefining industrial hemp under state law, lawmakers in Connecticut are complying with federal regulations. Once the bill is enacted, the Connecticut Department of Agriculture will be allowed to license agriculture and research pilot programs in accordance with the federal guidelines that are outlined in 7 USC § 5940."

Strictly speaking, Gacek stands absolutely correct. Hemp cultivation is now completely legal under Connecticut law, but remains illegal under federal law without a permit. However, Gacek underestimates the potential impact of this bill, as Vermont demonstrates.

When government removes obstacles from a lucrative market, people will move in to take advantage of the potential windfall, even when some risk remains. We see this dynamic playing out in states that have legalized hemp, and it will undoubtedly play out the same way in Connecticut.

Ultimately, Connecticut farmers will have to decide if they want to accept the small risk that the feds might shut them down. But with state prohibition removed, the path to hemp cultivation became much easier, and some enterprising souls will undoubtedly follow it.

So far, eight states have legalized hemp. As more states follow suit and production becomes widespread, it will become increasingly difficult for the feds to enforce their senseless ban. This growing movement at the state level will indeed ultimately thwart federal prohibition in practice.