Hemp and Pot Restrictions Not Dying Fast Enough

The push for legalization-particularly farming-is being hampered by in a number of ways.


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I finally escaped Washington, D.C., last month, arriving by car with my girlfriend as new residents of Seattle early this month.

I've welcomed most of the changes I've seen here—apart from the Lenin Statue near our apartment. The traffic is lighter. The food is better. The people are nicer. The neighborhoods are more walkable. The mountains are beautiful. Most politicians and bureaucrats are further away.

And the marijuana—which I haven't yet tried as a resident, though I've perused one of the nearby pot shops—is legal (if overtaxed and overregulated). In fact, when I buy beer, wine, or liquor, signs nearby in the store indicate it's regulated by a body known as the Washington State Liquor and Cannabis Board.

While marijuana has typically resided in this country in a legal and regulatory silo reserved for drugs, its growing legal status means it's increasingly subject to regulations—like those enforced by the WSLCB—that traditionally pertain to agriculture and food.

I'm a longstanding supporter of drug legalization. As a former writer for the Drug Policy Alliance, the idea that I'd some day be one of millions of Americans to live in a place where it's perfectly legal to buy a joint is both bizarre and wonderful.

But movement toward legalization is slow, and oftentimes inconsistent. Even in states where pot is putatively legal, problems exist not just in terms of taxes and sales but also—perhaps more importantly—around growing cannabis. Washington State, for example, still prohibits people from growing it at home.

Indeed, when it comes to growing cannabis (and its non-psychoactive cousin, hemp), farmers and individuals who want to grow pot continue to face some absurd legal hurdles. Many are fighting back.

Farmers in Southern California and Oregon—both places where marijuana has been legalized—are being forced to push for their rights to grow pot. In California, voters recently chose to legalize marijuana statewide. But those who want to grow it must still apply for approval from local zoning authorities. Tax incentives built into the law make it likelier counties and other local governments will grant zoning approval. But it's no slam dunk.

In San Diego County, a recently formed group, the Southern California Responsible Growers Council, appears concerned that while other counties in the state are "scrambling" to embrace pot farming, conservative San Diego has been slow to embrace economic and cannabis growth. Such fears don't appear unwarranted. In neighboring Oregon, some local governments have rejected legal weed, something state law seemingly allows. But some who've been told by local governments that they can't grow cannabis are fighting back.

Oregon farmers who've sued appear to be relying at least in part on the argument that prohibiting cannabis farming amounts to a regulatory taking. Across the country, advocates for legalization in Missouri failed last year to convince a judge that the state's "right to farm" law includes the right to grow cannabis. These are just two of many legal arguments adopted recently by state and local cannabis-farming legalization advocates.

But these state and local fights only tell part of the story. While states have increasingly moved to legalize marijuana—it's legal for recreational and medical purposes now in eight states and the District of Columbia—the federal government is still resistant—perhaps more so this week than last (though maybe not).

Just this week, the Hemp Industries Association, a pro-hemp trade group, petitioned the Drug Enforcement Administration (DEA) to reverse a newly adopted final rule designating non-psychoactive hemp extract as a Schedule I drug. In the petition, the HIA argues in part the DEA rule is preempted by the 2014 Farm Bill, which limited the DEA's authority to prohibit a limited amount of hemp planting. The HIA also argues that the final rule suffers from procedural defects and wrongly concludes that "the mere presence of 'cannabinoids,' which are not controlled substances," is sufficient for the DEA to designate them as such. The HIA argues that these various flaws amount to an unconstitutional exercise of DEA power.

The Farm Bill does permit some limited planting of hemp. But state governments are the only ones (e.g., through a state university) who may do the planting. Individuals must seek a permit.

"The DEA bars farmers from growing hemp without a permit," I wrote in a 2013 column on hemp and the Farm Bill. "Not surprisingly, the DEA doesn't issue such permits." Even as at least a dozen states have removed barriers to planting hemp, the HIA lawsuit makes clear that the federal government in general—and the DEA specifically—continues wrongly to stand in the way.

"The DEA's attempt to regulate hemp derived products containing cannabinoids lawfully sourced under the [law] is not only outside the scope of their power, it's an attempt to rob us of hemp's economic opportunity," says HIA head Colleen Keahey.

That's exactly what federal, state, and local restrictions on marijuana and hemp do: they restrict economic opportunity for farmers, entrepreneurs, and consumers. They also diminish other important freedoms, along with government tax receipts. For these reasons, it's never been more important to hasten the inevitable demise of these restrictions.