Farmers who plant industrial hemp in Kentucky soil risk prosecution regardless of a U.S. Department of Justice memo on federal marijuana enforcement issued earlier this year, Kentucky Attorney General Jack Conway said Wednesday.
Regardless, the Kentucky Industrial Hemp Commission will continue its effort to launch a hemp-licensing program, said Holly Harris, chief of staff for Kentucky Agriculture Commissioner James Comer.
In an advisory opinion to Kentucky State Police Commissioner Rodney Brewer, Conway said hemp remains an illegal substance by federal law. Although the General Assembly passed Senate Bill 50 to set up a regulatory framework for industrial hemp farming, Conway said state law identifies hemp as a cannabis plant with a federally established concentration of tetrahydrocannabinol, the psychoactive ingredient in hemp’s botanical cousin marijuana.
The problem, Conway said, is the federal government has not set such a tetrahydrocannabinol level and still bans hemp in the Controlled Substances Act.
“We do not have either a change in the Controlled Substances Act to exempt industrial hemp, nor do we have a federal waiver from the Drug Enforcement Administration,” Conway told reporters on a conference call.
Comer criticized Conway’s opinion, saying the attorney general “is wrong to threaten to prosecute farmers.”
“Hemp is legal in Kentucky, and the federal government has made it clear that it is not going to prosecute farmers for growing hemp,” Comer said in a statement.
“It makes no sense that Attorney General Conway would throw up an unnecessary government obstacle to an industry that has the potential to create jobs and revenue for Kentucky.”
The hemp commission pressed forward with a licensing program this month in light of a Department of Justice memo that laid out guidelines for prosecuting federal drug laws in Colorado and Washington, the first U.S. states to legalize and regulate recreational marijuana.
Luke Morgan, a Kentucky Department of Agriculture attorney, also presented a 2003 regulation from the Drug Enforcement Administration that separated hemp from marijuana.
The Department of Agriculture is drafting regulations governing hemp farming. Comer and U.S. Sen. Rand Paul will co-sign a letter notifying the Department of Justice of plans to implement a hemp-farming program.
But Conway disputed the department’s interpretations on both documents. The 2003 regulation deals with hemp products but not the plant itself, and the Department of Justice memo does not change the legality of hemp, he said.
“I think it’s irresponsible for anyone to take the Department of Justice’s guidance, their guidance to prosecutors in states that have legalized marijuana, and to take that and contort it that suddenly industrial hemp is now legal in Kentucky,” Conway said. “That’s not the state of the law.”
Conway said he heard concerns from state police and Gov. Steve Beshear’s office after the Department of Justice issued its memo to federal prosecutors, but he has not discussed the issue with Comer, a key supporter of industrial hemp farming in Kentucky.
Harris maintained that the 2003 DEA regulation clarified federal law on hemp and the Department of Justice ruling only cemented hemp’s status as a legal crop.
“It’s legal at the federal level, and it’s legal at the state level,” she said. “It’s legal, period. That is our position.”
Still, Conway’s opinion could have “a chilling effect” on progress made in recruiting hemp manufacturers to Kentucky, Harris said. The opinion does not carry the force of law, but she noted the department might need some clarification on his opinion before licenses are issued.
“It appears what he’s saying is farmers could be subject to prosecution,” Harris said. “Well, that’s not really an answer to that question: Are you going to pursue prosecution of hemp farmers?”
Conway did not say whether he would pursue criminal cases against hemp farmers, but the opinion made plain that those who plant hemp seeds could wind up in court.
“Any farmer that grows industrial hemp for business purposes is thus still subject to any applicable criminal provisions and the financial risks of investing and producing a product that it is illegal for the general public to possess or grow,” the opinion reads.