Updated: Jan 16, 2019
UPDATE (3/6/2017) Thanks to the many calls and concerns expressed on social media regarding HB 333 and HB 448, the language in both bills is now being revised to be nothing but beneficial to the Kentucky hemp pilot program, and the industry as a whole.
Kentucky hemp pilot program participants and supporters are desperately urging the Kentucky legislature to kill or amend two bills that passed in the House this week. HB 333 and HB 448 both contain language that could potentially effect over 60 percent of the Kentucky hemp pilot projects across the state.
We are urging Kentuckians to call 800-372-7181 and request the office of your;
1) STATE SENATOR, and express that you do not support HB 333 unless the provision requiring for CBD to be FDA approved is removed, or amended to exclude industrial hemp-derived cannabinol (CBD or extracts).
2) STATE REPRESENTATIVE, and ask them to vote against HB 448 when it gets to the house floor.
See descriptions of each bill and conflicting issues below.
HB 333, “An Act relating to controlled substances,” passed 96-1 in the House on February 28 and will now go up for vote in the Senate. The bill is an effort to deal with the state’s growing opioid abuse problem. However, a sentence that was inserted about cannabidiol (CBD or hemp extract) has caused great concern in the hemp industry. The language in Section 25(a-d) requires that CBD (cannabidol) be prescribed by a physician and approved by the Food and Drug Administration (FDA). See bill text below.
Katie Moyer, Kentucky hemp pilot program participant and processor, described the bill as a sneak attack by British company, GW Pharmaceuticals. She explained how the international company hired a KY lobbying firm to find a bill into which they could slip a little pro-pharma language, and that “while the bill has little to do with hemp, the insertion into a pain-killer bill is a blatant admission that cannnabidol and hemp derived CBD products offer pain relieving properties.”
Leading industry advisor and attorney, Jonathan Miller, shared his sentiments regarding the bill and assured that while HB 333 should be of concern, that the language in the bill would not affect the legal status of hemp-derived CBD products. See full statement below:
1) Current Kentucky law permits the production and sale of CBD products that are derived from industrial hemp. That’s because the term “marijuana” –still considered a controlled substance in the state – is legally defined as NOT INCLUDING industrial hemp. KRS 218A.010(22)(a)
2) The controversial CBD language in HB 333 does NOT affect the legal status of hemp-derived CBD products. The sentence merely adds an exception to the definition of “marijuana” for CBD approved as a prescription medicine by the FDA.
3) HOWEVER, this language still should be a concern to the hemp industry:
a. It is part of a national effort by GW Pharma, and its US subsidiary Greenwich Biosciences, to pass legislation in states across the country to proactively prepare for the expected approval by the FDA of its CBD medicinal product line. Read about the effort here. There is significant concern that GW Pharma’s end goal is to establish a monopoly for CBD products in the US, although they have denied that publicly. Greenwich has also enlisted the support of the Kentucky Diabetes Foundation. Again, they have told legislators that they are not trying to establish a monopoly, but just give providing another option.
b. The more immediate problem is that there is already confusion among law enforcement about CBD, and this bill could add to the confusion.
i. As you are aware, the DEA issued a rule that seemed to imply that CBD was a “marijuana extract.” That rule is currently being challenged in federal court.
ii. After the DEA Rule was issued, Princeton KY police and a local narcotics task force seized packages of CBD gummies, claiming that the owner was trafficking in marijuana. I am consulting with the store owner’s lawyers, who are making a strong case that these gummies are hemp, and therefore exempted under the definition of marijuana. (They contained no THC).
iii. We are afraid that if HB 333 passes with no changes – especially with industry groups claiming in emails and social media that the new law would redefine CBD as marijuana – there will be more enforcement actions like this, and/or cause great disruption in the industry.
Kentucky Agriculture Commissioner, Ryan Quarles, is leading an effort to fix HB 333, because of the many calls and visits to Frankfort regarding its issues. Legislators understand that there is broad support to fix the legislation, and are working on accomplishing one of two options to do so:
1. Delete the controversial sentence.
2. Even better: Amend the sentence to add a new, clarifying exception to marijuana: For “cannabidiol products that are derived from industrial hemp, as defined by federal law.” Such an amendment would provide belt and suspenders protection to hemp CBD sales and production in Kentucky.
As if HB 333 hadn’t caused enough concern this week, yesterday the Kentucky House Agriculture Committee passed HB 448, and is expected to come to the House floor in the next few days. HB 448 is titled ‘An ACT Relating to Industrial Hemp’, and includes language that seems well intentioned, yet it would be detrimental to the hemp pilot program and its participants.
The bill includes a provision that would create a new definition of “extracts” that includes “any cannabinoids, acids, isomers, salts and salts of isomers derived from any portion of the industrial hemp plant” and excludes “extracts” from the definition of marijuana. If this language survives, it would solve the HB 333 problem mentioned above, making it clear that hemp-derived CBD (extract) is not marijuana.
Unfortunately, the bill also bans general commercial sales of hemp and bans sales into any state that doesn't have also hemp program. It contains a provision that essentially bans “general commercial activity” and interstate commerce in hemp. See below.
When Congress passed the Farm Bill, it permitted “marketing research” in order to ensure that upon full legalization of hemp there would be markets for hemp crops and products. This means hemp pilot programs are authorized to sell finished hemp products across state lines, and are tasked with studying this commerce.
Congress further added to this provision in the 2016 Omnibus Law, where it explicitly prohibited federal agencies from interfering with the interstate sale and transport of hemp products produced in state pilot programs. However, HB 448 would prohibit this practice in Kentucky – banning “general commercial activity” and eliminating the transfer of hemp products to, or through, states that have not created a pilot program.
"Many have invested millions of dollars in efforts that are clearly permitted by federal law, and encouraged by the excellent state regulatory regime established under Congressman Comer and expanded by Commissioner Quarles." said Miller. Banning commercial activity would impose significant economic hardship on those who have made these investments, and would set the Kentucky program back immeasurably.
The bill also raises concern due to the fact that raising the THC limit of hemp crops to 1% at this time could essentially mean the Kentucky pilot program is not in compliance with the 2014 Farm Bill, which requires all crops grown under a state research program or university to fall under the 0.3% THC threshold. Not to mention, it also means that should Congress legalize the production of industrial hemp, Kentucky would be unable to participate in the national market!
Thank you to everyone who has already called and expressed concerns thus bringing this matter to public attention. We will share updates they become available! In the meantime, please continue to contact your legislators to encourage them to address both of these bills immediately. The future of the Kentucky hemp industry depends on it!
Update: HB 448 died in the Kentucky House, and HB 333 passed with the necessary amendments that made it a positive bill for hemp production. Click here for a follow up on KY HB 33 and KY SB218.