A primer on the Farm Bill
How an agricultural bill became relevant to hemp and cannabis policy
In 2018, the United States government approved an agricultural bill that fundamentally changed national hemp policy. The Agricultural Improvement Act (“Farm Bill”), signed into law in December 2018, de-scheduled hemp and opened the door to the intoxicating hemp product market we have today.
So, what is the Farm Bill?
The Farm Bill1 is an omnibus federal bill that authorizes a suite of agricultural and food programs, from crop protection to conservation, rural development to forestry protection. The sweeping nature of the bill – which clocks in at nearly 1,000 pages – allows for comprehensive policy decisions about the nation’s most pressing food and agricultural issues.
The Farm Bill is supposed to be renewed every five years, but in recent years, it has required extensions. The 2012 version of the Farm Bill was passed two years late in 2014. The 2018 Farm Bill was set to expire at the end of 2023 but has been extended until the end of 2024.
A brief history
The first Farm Bill was adopted in 1933 as part of the New Deal. It provided financial assistance to farmers following the Great Depression. In those years, surplus supply of commodity crops was driving prices down, creating an agricultural crisis. The bill attempted to fix this by paying farmers to reduce production and providing loans that insured against low prices. The goals were to reduce market volatility and protect the food supply.
Over time, the Farm Bill has expanded greatly. It now includes risk management tools, such as crop insurance, and financial assistance programs, such as grants and loans, that support rural development and conservation. The Farm Bill also includes nutrition assistance programs, such as the Supplemental Nutrition Assistance Program or SNAP, which account for about 75% of its total budget.
The intersection between hemp and the Farm Bill
Hemp was once an essential crop and strategic resource in the United States, used for ships, ropes, and canvas. But hemp farming declined significantly following the adoption of the Marihuana Tax Act of 1937, which included hemp in the definition of “marihuana” and subjected both to heavy taxes and restrictions. When the Controlled Substances Act was adopted in 1970, hemp was again included with cannabis and classified as a Schedule I drug.
The 2014 Farm Bill was the first attempt to reintroduce hemp farming in the United States. It allowed states to establish pilot programs to grow hemp for research purposes. Under the pilot programs, hemp could be cultivated by either a university or a farmer authorized by the state department of agriculture.
The pilot programs2 were successful in achieving this goal. By 2018, states reported more than 90,000 acres of hemp were being grown under the pilot programs. By 2019, that increased further to 146,065 acres – close to the 146,200 acres reported in 1943, before U.S. hemp production largely ceased.
The 2018 Farm Bill further normalized hemp cultivation. Hemp was added to the Agricultural Marketing Act, made eligible for federal crop insurance, and removed from the Controlled Substances Act. Hemp cultivation (and interstate commerce) was legalized under USDA-approved State or Tribal Plans, or the USDA Plan itself, which require:
Registration or reporting
Testing of plants to ensure delta-9 THC is below 0.3%
Periodic inspections and compliance
But here’s where things got a bit wonky...
The definition of hemp substantially changed between the 2014 and 2018 versions of the Farm Bill. The 2014 definition was specific to plants and corresponding plant material. But the 2018 definition was expanded to include extracts, derivatives and isomers.
Here’s the 2014 Farm Bill definition:
“The term “industrial hemp” means the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”
And the 2018 Farm Bill definition:
“The term “hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” (emphasis added)
The more recent definition has created a loophole3 for the conversion of non-intoxicating hemp cannabinoids into highly-intoxicating ones using chemical synthesis.
The DEA has attempted to distinguish between cannabinoids that are naturally occurring in hemp (and therefore deemed legal) from cannabinoids that are not naturally occurring in hemp or are too chemically manipulated to be considered hemp (and are therefore classified as either cannabis or synthetic drugs). But everyone is confused – including courts, which have issued conflicting opinions.
What’s ahead
The 2018 Farm Bill was scheduled to expire at the end of 2023, but it was extended until late 2024. As the deadline approaches, there is a great deal of discussion about issues that could be addressed in the next version.
On the hemp cultivation side: A major challenge for hemp farmers is that THC content in Cannabis sativa plants can be variable and influenced by extraneous factors, such as seed quality and neighboring or wild hemp plants. When THC content exceeds 0.3%, federal law requires the crop to be destroyed. But farmers don’t always know whether the plant will exceed that threshold until it’s close to maturity. This can lead to the destruction of some or all of a harvest, well after costs have been incurred, which can be financially devastating and is not covered by federal crop insurance.
On the finished product side: The sprawling definition of hemp has led to a national market for intoxicating hemp products which are widely available to youth and lack basic product safety standards. The FDA has both declined to regulate these products and also has also not taken any meaningful enforcement action to stop their proliferation. Some are calling on Congress to close the loophole, while others are calling for the establishment of a regulatory framework4.
Final thoughts
The goal of re-establishing hemp production in the United States was/is a worthy endeavor. Hemp is a renewable resource, and its potential to support sustainability goals through biofuels, bio-plastics, and bio-energy is only beginning to be understood. But much of the conversation about hemp’s agricultural potential has dwarfed by the so-called intoxicating hemp loophole.
There are many pathways Congress could take to resolve this - from establishing a regulatory framework to clarifying current legality. Answers are needed - and the policy solutions should be as nuanced as the problem itself.
Learn more about the Farm Bill:
Farm Bill Primer: What Is the Farm Bill? (Congressional Research Service)
Economic Viability of Industrial Hemp in the United States: A Review of State Pilot Programs (U.S. Department of Agriculture) – see Appendix E for a selection of legislation relevant to hemp, including relevant text from the 2014 and 2018 Farm Bills
Field to Table: A Farm Bill Primer (National Conference of State Legislatures)
Primer for Counties: 2023 Farm Bill Reauthorization (National Association of Counties)
If you want to learn more about a specific topic in cannabis policy, you can email your questions and suggestions to info@cannabispolicylab.com.
“Farm Bill” is a nickname. The actual name of the legislation changes each year. The most recent version, in 2018, was called the “Agricultural Improvement Act.” The original version, in 1933, was called the “Agricultural Adjustment Act.” Other names include the Food and Agriculture Act, Agriculture and Consumer Protection Act, and Farm Security and Rural Investment Act.
The 2018 Farm Bill required the USDA to conduct a study of these pilot programs, which is a fascinating read.
Some advocates have argued that this isn’t a loophole and that it was an intended outcome, but I disagree. The Farm Bill focuses on agricultural policy, not manufactured products. There’s no evidence to suggest that Congress intended to make highly-intoxicating drugs legal and widely available – with no regulatory control. In fact, all evidence indicates the opposite is true.
Unfortunately, groups speaking with Congress report that many members and staffers do not understand the Farm Bill’s role in creating an intoxicating hemp market.