Last month, the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) was struggling with federal rules dictating that the program under which our more than 1,200 hemp farmers operate had to end in November 2020. The answer chosen by DATCP was to transition to a new—but similar—hemp program, dropping the “pilot” and “research” parts of the former “Hemp Pilot Research Program.”
Starting in November 2020, a few changes apply to our state’s hemp enterprises. The new program requires a background check conducted by the Wisconsin Department of Justice; but unlike the old program, it allows people who have been convicted of a felony relating to a controlled substance more than 10 years ago to receive a license. Now, applicants must pay for the background check, as well as a new $150 fee for hemp processors requesting their first license. Several processes have been clarified with the hindsight of three years spent in the pilot research program. DATCP also converts existing pilot program licenses to licenses under the new program automatically and for free.
There were several options open to DATCP as November approached, the first of which was to transition to the 2018 Farm Bill, the newer legislation overseeing hemp production. Instead, DATCP chose to remain under the authority of the 2014 Farm Bill, which previously ruled the pilot research program. Hemp was federally legalized by the 2018 Farm Bill, which means that Wisconsin did not actually need to hold on to the 2014 version.
If they chose to operate under the 2018 bill instead, DATCP would have been required to either get a plan approved from the United States Department of Agriculture (USDA) or to agree to the generic rules of the 2018 Farm Bill. Wisconsin is one of 23 states that did not receive approval from USDA to establish their own rules under the authority of the new Farm Bill. The generic rule of the 2018 bill, DATCP claims, would also be less advantageous to Wisconsin farmers.
“DATCP must consider what provides the Wisconsin hemp industry with the greatest opportunity to ‘plant, grow, cultivate, harvest, produce, sample, test, process, transport, transfer, take possession of, sell, import and export hemp in this state to the greatest extent allowed under federal law,’” the Department of Agriculture explains. “DATCP has determined that the hemp research program currently provides the Wisconsin hemp industry the greatest opportunity at this time and has made the decision to continue implementing the state hemp program under the authority of the 2014 Farm Bill.”
The 2018 Farm Bill contains stricter timelines to sample and harvest crops than what Wisconsin currently enforces, and it applies more stringent measurements to determine if a crop is legal hemp or illegal marijuana. Currently, Wisconsin farmers can harvest crops that contain up to 0.399% tetrahydrocannabinol (THC, the psychoactive component of cannabis), although hemp is defined as having less than 0.3% THC, because DATCP rounds down from 0.399%. This would have to change if the state obeyed the 2018 Farm Bill.
Wisconsin will keep operating under the new Hemp Program until September 30, 2021, which is the federal deadline for states to maintain existing programs. It is unclear what will happen then. The Biden Administration might intervene to clarify the standing of hemp, or the issue could be dragged along until the deadline is reached. In the latter case, the states still operating under the 2014 Farm Bill would go through another round of confusion like what happened in the past few weeks. Either way, it seems inevitable that all states, including Wisconsin, will eventually have to transition to the new federal rules; the questions are when and how.
