Regulation of CBD-Hemp and Pollinating Hemp in Humboldt County

To: Humboldt County Board of Supervisors


Subject: Regulation of CBD-Hemp and Pollinating Hemp in Humboldt County

As the county considers local regulations for hemp cultivation, this memo outlines several recommendations and concerns regarding the future of “hemp” in Humboldt County. As with cannabis policy, hemp policy is a new and rapidly developing area, and tailoring a local policy that is responsive to both local control and rapidly changing state and federal policy is a major challenge. Hemp policy is even further complicated by its relationship to cannabis policy, itself a rapidly evolving and uncertain area.


Amid this uncertainty, we think there are a few important principles that should guide Humboldt hemp policy. We have three major recommendations:


1- HCGA strongly supports extending the county’s moratorium on the cultivation of industrial hemp.

2- HCGA strongly opposes that pollinating hemp varieties (i.e. hemp produced for reasons other than CBD) should be allowed in the county due to the significant risk that hemp pollen will contaminate cannabis and CBD-hemp farms.

3- HCGA supports that hemp produced for its CBD content should be authorized under the county’s existing cannabis ordinance, as suggested by staff. However, has concerns on properly regulating such activity due to the uncertainty of evolving federal and state policy and believes the county should carefully approach the issue.

At the outset, we’d like to establish some clarity on what we mean by cannabis, CBD-hemp, and pollinating hemp. Although there is not yet a clear legal distinction between these categories at the state or federal level, we think that understanding the botanical and operational distinction between these different plant types is a key first step to formulating thoughtful hemp policy.


Defining Cultivation Practices: Cannabis, CBD-Hemp, and Pollinating Hemp

While state law distinguishes only between high-THC “cannabis” and low-THC “hemp,” the agricultural reality of hemp cultivation requires a distinction to be made between hemp produced for CBD content and pollinating hemp produced for seed or fiber. We distinguish these categories as follows:

· Cannabis – contemplated under the current CCLUO and MAUCRSA, state law essentially defines cannabis as the cannabis plant and its by-products that contain more than 0.3% THC.

· CBD-hemp – all hemp, including CBD-hemp, is defined under state law as containing less than 0.3% THC. However, as the county staff report points out, CBD-hemp in practice is produced in a manner very similar to high-THC cannabis. CBD-hemp is grown for its flower, is not densely planted, and is grown with care. Most crucially in this context, CBD-hemp must be feminized in order to produce the high amounts of cannabinoids necessary to make it marketable. CBD-hemp cultivators, like cannabis cultivators, must pay close attention to their plants to ensure that no male plants are given the opportunity to release pollen and effectively destroy their crop.

· Pollinating hemp – referred to at times in the staff report as “industrial hemp,” we use pollinating hemp to refer to forms of hemp cultivation that require or traditionally utilize male plants. Typically, pollinating hemp is grown for its seed (often for human consumption in food products) or its fiber. When grown for seed, pollinating hemp requires male plants in order for reproduction to occur. When grown for fiber, male plants are often preferable to female plants due to the qualities of male hemp fiber. As a practical matter, the cultivation of pollinating hemp does not resemble the cultivation of CBD-hemp or cannabis. As the staff report explains, pollinating hemp varieties are densely planted, not grown with care, not feminized, and low in cannabinoid content.


To be clear, the distinctions made here between pollinating hemp and CBD-hemp are for practical purposes and are not present in state or federal law. According to existing law, all hemp varietals that contain less than 0.3% THC are considered “industrial hemp,” regardless of how they are cultivated.


Pollinating Hemp Poses Major Risks for Humboldt’s Cannabis and CBD-Hemp Economies

Concerns regarding hemp pollen contamination of cannabis crops are well-established. Wind widely distributes the pollen from male hemp plants, seeding feminized cannabis and CBD-hemp crops that are often located many miles away. In order to produce significant THC or CBD, these feminized cannabis crops cannot be pollinated and seeded; if pollination occurs, they lose their cannabinoid potency are essentially unmarketable.[1]


Other states have often underestimated the challenge in managing the relationship between cannabis cultivation and the cultivation of pollen-producing hemp varietals. Without the benefit of experience, jurisdictions have often dismissed hemp pollen drift issues as too technical, subtle, or unstudied to take effective preventive regulatory action. In these regions, the failure to anticipate pollen drift issues as part of an initial cannabis/hemp regulatory structure has caused structural pollen drift problems that are now very difficult – if not impossible – to reverse.


Pollen drift issues are not unique to cannabis: in conventional foods, GMO crop pollen often seeds and contaminates organic farms, resulting in litigation claims that state and federal laws have not been able to cleanly resolve.[2] Even among agricultural crops, however, hemp pollen is uniquely difficult to control. A study in the Journal of Industrial Hemp found that hemp pollen is uniquely prolific, far-reaching, and unpredictable. Male hemp plants release large amounts of pollen and winds can carry pollen for large distances: the study estimated that wind patterns could result in a 5x variability in average distance travelled.[3] Given the unpredictability of hemp pollen, the study was not able to suggest a safe buffer area between hemp and cannabis crops, and later publications have not been able to fully clarify the issue.


In practice, pollen drift has consistently created problems in jurisdictions where outdoor cannabis cultivation coexists with pollinating hemp. In Pueblo, Colorado, a four-mile buffer between cannabis and hemp farms hasn’t been sufficient to prevent cross-pollination, and crop loss is estimated at 12-18%.[4] In Oregon, burgeoning hemp cultivation is forcing many cannabis growers indoors.[5]


We want to emphasize that this is not an issue where cannabis and hemp are necessarily at odds. As mentioned earlier, pollen drift from male plants poses the same risks to CBD-hemp as to cannabis. The relevant distinction is not between cannabis and hemp, but rather between feminized plants grown for cannabinoid production (whether THC or CBD) and male-inclusive hemp crops grown for other purposes.


In response to pollen drift concerns, the county’s staff report suggests that the county should require feminized seeds, with the idea that female plants will not release pollen. For reasons considered below, however, we do not believe that this proposed mitigation strategy will resolve the pollen drift problem.


Feminized Seeds Will Not Mitigate Risks from Pollinating Hemp

Hemp seeds – like cannabis seeds – may be feminized in order to produce female-predominant adult plants. Requiring the feminization of pollinating hemp/industrial hemp varietals, however, is not a meaningful, enforceable, or effective approach for several reasons:

· Non-CBD industrial hemp typically requires the presence of male plants – other issues aside, the notion of “feminizing” hemp that is produced for seed or fiber is basically contradictory. As mentioned earlier, cultivation of hemp for seed requires male plants for reproduction, and cultivation of hemp for fiber often requires male plants due to the unique qualities of their fiber.[6] As a result,

requiring feminization of hemp seed eliminates most of the uses for which non-CBD industrial hemp would be grown in the first place.

· “Feminized seeds” still produce male plants – despite the name, certified “female-predominant seeds[7]” only produce female plants 70-95% of the time[8]. The remaining male plants, on a cannabis or CBD-hemp farm utilizing feminized seed, must be carefully eliminated to prevent pollen contamination. Elimination of male plants on cannabis or CBD-hemp farms is typically effective given the incentives at play: if male plants are not culled, the cannabis or CBD-hemp crop will be effectively worthless, warranting a high level of care and attention from the farmer. On the other hand, industrial hemp farms have little incentive to cull male plants, and in fact may have an incentive to maintain them.

· A seed or plant feminization requirement would be extremely difficult to enforce – even if a prohibition on feminized seeds were expanded to include feminized adult plants, it’s hard to imagine how such a prohibition could be enforced. Staff would need to exhaustively inspect all densely-planted pollinating hemp farms for male plants, and – as discussed above – absent heavily-resourced enforcement, hemp farmers have little incentive to undertake the labor required to cull male plants.


Humboldt County is Not Suited to The Production of Pollinating Hemp

Pollen drift issues aside, Humboldt County is not especially suited to the production of hemp for fiber or seed. As one article cited in the staff report points out, pollinating industrial hemp grown for fiber or seed is typically cultivated in “vast fields” at a large scale and with little individual attention paid to plants.[9] As a result, farmers in the Central Valley have been at the forefront of California’s hemp registration program.[10]


CBD-Hemp Considerations

CBD-hemp involves considerations distinct from the cultivation of pollinating hemp. As mentioned earlier, we support the inclusion of CBD-hemp in the county’s cannabis ordinance. Feminized CBD-hemp does not pose risks of pollen contamination and involves environmental and land use issues similar to those faced by cannabis farmers. With this in mind, we think inclusion of CBD-hemp into the county’s existing land use ordinance will ensure effective and equitable regulation of CBD-hemp farms.


As the county considers how to integrate CBD-hemp into the CCLUO, there are a few legal issues that we think are worth keeping in mind. These are not recommendations, but we mention them to help develop a sense for the complexity of policy making in an emerging and unsettled context.


CBD-Hemp: A Cannabis Product or a Hemp Product?

Although it’s sensible to treat CBD-hemp and cannabis similarly from a land use perspective, this legal distinction is not yet recognized at the state level. CBD-hemp farmers seeking to comply with the CCLUO will therefore need to determine whether they would prefer to sell CBD through California’s licensed cannabis market, or through the largely unregulated hemp market. Sale through the hemp market has several advantages from the farmer’s perspective: CBD-hemp farmers will not need to obtain a state cannabis license, will not be required to follow state cannabis regulations or pay state cannabis taxes, and may be able to sell CBD products across state lines.


On the other hand, a CBD-hemp farmer who does not obtain a state cannabis license will need to ensure that their product tests below 0.3% THC, or risk sanctions from the state. Under current state law, hemp is required to be tested for THC content no more than thirty days before harvest and must be destroyed if the test reveals an excessive THC content. If THC content is measured at more than 1%, the cultivator is potentially criminally liable for violation of cannabis cultivation laws.[11]


Pending state legislation – SB 153 – would stiffen state sanctions associated with hemp cultivation that exceeds 0.3% THC.[12] Initial violations of the THC content threshold, if shown to be the result of negligence rather than bad intent, would require the cultivator to submit a corrective action plan to CDFA. A third violation would result in revocation of the right to grow hemp. For a violation that involves criminal intent, CDFA is required to refer the case to the state and federal Attorneys General.


Evolving State and Federal Landscape on CBD-Hemp

The federal legalization of hemp has not clarified many outstanding questions about CBD-hemp and CBD. These questions include:

· At the state level, whether CBD may be added to food and drink without adulteration. AB 228, pending state legislature, would reverse CDPH’s current position that CBD may not be added to food or drink.[13]

· At the federal level, the FDA continues to prohibit CBD in food and beverage for the time being.[14] Other questions related to FDA approval of the CBD drug Epidiolex, and its relation to non-pharmaceutical CBD, remain unsettled.

· The legality of hemp or CBD export across state lines, and whether and how other states may enforce against exporters.[15]

· Over the long term, whether the separation of the CBD-hemp and cannabis markets is sustainable or sensible given the botanical similarities between the plants.


Conclusions

Amid uncertain state and federal hemp policy, we believe Humboldt County should take cautionary approach to all hemp related issues. Once again, HCGA strongly supports a prohibition on pollinating hemp, supports incorporation of CBD-hemp into the county’s existing land use ordinance, thusly protecting the viability of the county’s existing cannabis industry and creating a pathway for farmers seeking to cultivate CBD-dominant hemp.

Thank you for your considerations on this very important issue.


Warmest regards,

Terra J. Carver

Executive Director

Humboldt County Growers Alliance

hcga.co


[1] https://cannabisnow.com/oregons-sinsemilla-worries/

[2] http://www.pennstatelawreview.org/wp-content/uploads/2015/02/3-Endres-final.pdf

[3] https://pdfs.semanticscholar.org/c9ec/c950ba86efa252469e943332b82e1c445163.pdf

[4] https://dopemagazine.com/pollen-drift-cannabis-industrys-ticking-time-bomb/

[5] https://www.forbes.com/sites/andrebourque/2019/01/31/how-hemp-is-moving-oregon-marijuana-to-an-indoor-grow-crop/#48746ce460ed

[6] https://www.leafly.com/news/industry/legal-hemp-pollen-drift. Specifically, Sonoma County Agricultural Commissioner Tony Linegar’s discussion of male hemp plants: “Sonoma County is one of just a handful of places in California that allow outdoor cannabis growing, and those growers have expressed a lot of concern, because there are some applications of growing hemp that require male plants… Primarily that would be when you’re growing hemp for seed (whether that seed is to be used for planting or for consumption), and when you’re growing hemp for fiber.”

[7] A list of California-approved female-predominant certified hemp seeds is here: https://ccia.ucdavis.edu/sites/g/files/dgvnsk5326/files/files/page/List%20of%20approved%20hemp%20varieties%20grain%20%26%20fiber%20for%20CA%20April%202019.pdf

[8] https://www.sciencedirect.com/science/article/pii/S1360138517301772

[9] https://www.potnetwork.com/news/no-cbd-oil-not-made-industrial-hemp-and-stop-saying

[10] https://www.fresnobee.com/news/local/pot-in-california/article221978935.html

[11] http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB1409

[12] http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB153

[13] http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB228

[14] https://www.naturalproductsinsider.com/regulatory/fda-cbd-let-congress-deal-it

[15] https://www.cannalawblog.com/transporting-hemp-across-state-lines-is-still-risky/

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