The 2014 Farm Bill was a disaster. While it ended direct farm subsidies, it replaced them with crop insurance subsidies—which may end up being more costly. It kept in place inane and costly sugar tariffs and duplicative catfish inspection programs. And it proposed to spend nearly fifty percent more than the previous Farm Bill.
The bright spot in the Farm Bill—a tiny seed of good news—was that Congress saw fit to include an amendment that would loosen the federal government's idiotic stranglehold on cultivating hemp.
The 2014 hemp amendment was introduced with bi-partisan sponsorship and passed with bi-partisan support.
But now the DEA has thrown a wrench into the law. It's held up a shipment of seeds destined for Kentucky, and forced the state to sue the federal government in order to seek their release.
"For weeks, we have dealt with unnecessary government bureaucracy, federal officials unwilling to discuss the law or answer questions, and delay… after delay… after delay," writes Kentucky attorney general commissioner of agriculture James Comer, who filed suit against the federal government on behalf of the state, in an op-ed this week.
Why has hemp caused a battle between states and the federal government?
Hemp has been used used since before recorded history to make fuel, fiber, and food. But it's also illegal to grow anywhere in the United States thanks to its relationship and resemblance to marijuana. But federal law does permit hemp to be used in foods. And there's a large and growing market for hemp foods.
As I wrote last year, "Amazon.com sells nearly 250 different hemp foods—including products like hemp waffles."
While both marijuana and hemp can make one crave waffles (though for different reasons), hemp doesn't get you high. And yet—thanks to the domestic ban—all of the hemp used in foods (and other products made with hemp) is grown, cultivated, and processed outside the United States.
"Hemp and hemp seeds are still considered a controlled substance and cannot be imported—meaning farmers in states that have industrial hemp laws on the books have no access to the crop," reported Politico after the Farm Bill's passage earlier this year.
The 2014 Farm Bill amendment was billed as a game changer.
"The market opportunities for hemp are incredibly promising-ranging from textiles and health foods to home construction and even automobile manufacturing," said Eric Steenstra, president of Vote Hemp, in a statement issued earlier this year after Pres. Obama signed the bill into law. "This is not just a boon to U.S. farmers, this is a boon to U.S. manufacturing industries as well."
But hold on. The Farm Bill provision is incredibly limited. It permits only "states that have legalized hemp farming to begin growing this useful crop for research purposes." And by "states" that means "states"—rather than individuals or private businesses. That's because the law permits only state governments—rather than individuals—to grow hemp.
As if that weren't bad enough, the law contains even more qualifiers.
In fact, it allows only "an institution of higher education… or a State department of agriculture [to] grow or cultivate industrial hemp."
What's more, it only permits a university or state agriculture department to grow and cultivate hemp if it's done solely for research purposes and if growing hemp is already legal in that state.
According to updated research by the National Conference of State Legislatures, only a dozen states "currently have laws to provide for hemp production as described by the Farm Bill stipulations."
One of those states is Kentucky. Which brings us to the state's lawsuit against the federal government.
Supporters of farmers and hemp food producers are excited about the lawsuit. So are opponents of the drug war.
"Kentucky is fighting for the right of farmers to grow hemp and the federal government will ultimately give in; just like the federal government will eventually give in and let states set their own marijuana policy," said Bill Piper, director of national affairs with the Drug Policy Alliance, in an email to me earlier this week. "The fact that Minority Leader Mitch McConnell is fighting for this shows how close we are to ending the failed war on drugs."
In the early 2000s, as the market for hemp foods began to grow, the DEA sought to ban all foods containing hemp. It took a federal court ruling, which confirmed that agency had no power to unilaterally ban hemp foods, to force the DEA to back off.
History looks to be repeating itself a decade later. But it's important to note that even a victory in this case won't fill America's fields with hemp. It will only allow several state governments to grow the crop for research purposes.
That's not good enough. What's more, the DEA's actions show that an agency that is willing to fight a state government over a shipment of legal seeds can hardly be trusted to respect the rights of small farmers. Only Congress can solve this problem. And it can do so by going beyond the Farm Bill and repealing the domestic ban on growing and cultivating hemp.
ADDENDUM: After this column was completed, the DEA released the hemp seeds to Kentucky state officials.
"I am glad the needless delay appears to be over and the program we have worked on for more than a year is about to become a reality," said Sen. Rand Paul (R-KY) in a statement released yesterday afternoon. "I have been working with Attorney General Holder on Kentucky's program for months, and I am pleased that his department has helped us move the program forward as Congress intended."