Just one day before the U.S. Department of Agriculture (USDA) released its final rule on hemp, Kentucky Senator Adrienne Southworth introduced legislation in the state to increase the allowable amount of tetrahydrocannabinol (THC) in hemp to 1%.
While the USDA’s final rule maintains its 0.3% THC limit, Southworth, who assumed office Jan. 1, is hoping that may still change at the federal level. And if it doesn’t, she’s hoping Kentucky can lead the charge in helping other states make the change at a local level.
As one of the first states to begin cultivating hemp under a pilot program, Kentucky has long been a leader in legalization initiatives, Southworth says, including attempting to legalize the crop since the early 2000s.
“From the beginning, there was always a clash between federal and state,” Southworth tells Hemp Grower. “The 0.3% THC—we always thought that was the best we could do at the time [of hemp’s legalization.]”
Waiting on Change
Southworth’s legislation to increase the THC level, Senate Bill 113, goes in tandem with another bill she proposed at the same time. Senate Bill 112 is meant “to prescribe
procedures for the testing of hemp; provide procedures to include an appeals process; [and] provide options for remediation or recycling hemp when hemp or hemp products exceed the delta-9 tetrahydrocannabinol concentration threshold,” according to the bill’s summary.
“Together they would be amazing, but both can stand on their own,” Southworth says.
Parts of S.B. 112 align well with the final rule, which provided additional options to farmers for disposing of or remediating their hot crops.
In other ways, Southworth is ahead of the curve on laws she anticipates are due to change.
U.S. Senator Rand Paul of Kentucky proposed a similar bill at the federal level in December to increase the hemp THC limit to 1%. (Increasing the THC limit federally would need to happen in Congress; it is not in the USDA’s authority to change.)
“Whether Rand Paul’s bill passes tomorrow or next year, most people I’m talking to say it’s going that way anyway,” Southworth says about the THC level. “... If we just wait for everyone else to do it, then we’ll lose our edge.”
Challenges with State Laws
Kentucky is still operating under its pilot program, so the state has flexibilities when it comes to hemp rules. But what happens when it needs to switch to the newest regulations, especially if the THC increase does not pass at a federal level?
Southworth is taking a note from the cannabis industry, which is federally illegal but legal at some capacity in 36 states. Despite states going against federal law, their cannabis industries are, on the whole, operating successfully.
Southworth does, however, recognize that the state-legal cannabis industry has its share of struggles as a federally illegal industry, such as banking.
“I don’t want to create a situation that presents more problems than it’s worth,” Southworth says. “If that is the case, at least this gives farmers a chance to know they have that [wiggle room].”
Increasing the THC level in Kentucky could have other implications. As Joy Beckerman, principal of consultancy Hemp Ace International, points out in a recent Hemp Grower story, many countries also have a 0.3% THC limit for hemp. If Kentucky were to increase its limit, producers in the state likely would not be able to export their product.
Selling even within the country could be problematic. Jonathan Havens, a partner at Maryland-based law firm Saul Ewing Arnstein & Lehr LLP, points out that with a 1% THC limit in the state, Kentucky producers may not be able to transport their products to other states.
And that’s all if the USDA decides not to enforce the federally mandated 0.3% THC limit.
“If USDA comes out and says … that the Kentucky approach doesn’t comply with the federal rules and [they’re] not going to sign off on it, it begs the question: What happens there? And what freedoms do Kentucky operators have to operate outside the boundaries of the state?” Havens asks.
Despite the unanswered questions, Southworth is confident the increased THC limit could be enough to help form “some kind of economic base in this state.”
And more than that, Southworth says the limit could help farmers who are struggling to meet the stringent requirement—and losing everything in the process.
“I don’t ever want that to happen to anybody. Not one person,” Southworth says. “If you are that person, it means everything to you. If you’re just a legislator looking at black marks on a white page, it doesn’t mean the same.”