By Maureen West, General Counsel/Compliance Officer, Functional Remedies
Creating a regulatory framework is a major undertaking. The 2018 Farm Bill, which authorized the USDA to regulate the cultivation of industrial hemp, has proven to be a big job for USDA regulators. Many state departments of agriculture are also busy creating their own regulatory framework. Individuals, many of whom have never been involved in a regulatory process, have become passionate about promoting the interests of hemp farmers and are working side-by-side with others including lobbyists and special interest groups.
The challenge for all of these “players” is to strike the right balance between too much government regulation that unnecessarily burdens hemp farmers against insufficient regulation that leaves hemp farmers uncertain about how to safely grow hemp.
With all the attention targeted towards hemp regulation, it’s worth noting that government regulation is everywhere and impacts almost every aspect of our daily lives. Hemp farmers and individuals interested in hemp farmer regulation can learn a lot from studying other government regulation models particularly those models that issue licenses. This approach can bolster advocacy for hemp regulation and save time by not re-inventing the regulatory wheel.
One issue that government regulators frequently grapple with pertains to the criminal background of applicants. Many types of applicants are subject to this scrutiny including doctors, nurses, barbers, midwives, acupuncturists, plumbers and electricians. In some regulatory programs, any history of criminal conduct may serve as a ground for denial of an application. In other regulatory programs, the applicant’s criminal conduct won’t serve as a basis for denial unless the conduct relates to the type of license being sought.
Although a government agency may deny an application, the denial may be overturned if there is statutory law that requires the government agency to consider whether the applicant has been properly rehabilitated. When this type of statutory law exists, and if the applicant can provide sufficient evidence that they are now a law-abiding citizen who has paid their restitution to society, a court is likely to find that the applicant is entitled to the license. In the interest of good public policy rehabilitation should be encouraged and recognized because of its benefit to society as a whole.
Arguably, it makes for bad policy when a regulatory rule provides a definitive time period during which a hemp farmer with a drug related offense is strictly prohibited from being issued a hemp grower license. Consideration about whether the applicant is rehabilitated is an equitable approach and affords the applicant an opportunity to move on with their life. If doctors and nurses who demonstrate rehabilitation can be issued a license which permits them to provide direct patient care, shouldn’t this same opportunity be afforded to a hemp farmer applicant who simply wants to grow a crop?
Another issue typical of licensure regulation pertains to the definition of “reasonableness.” In its final interim rules, the USDA makes reference to whether a farmer has made “reasonable efforts to grow hemp.” Essentially this provision poses the question of whether the farmer took reasonable steps to avoid growing hemp that exceeds the 0.3% THC threshold. In the regulatory arena, what constitutes “reasonableness” is most often the subject of hot debate that prompts a battle of the experts, both of whom are qualified to speak about what they believe is “reasonable.”
During this infancy stage of growing hemp in the United States, it’s questionable whether it is even possible to accurately determine what “reasonable” hemp growing entails. There exists a lack of information about how a given crop will perform when exposed to different altitudes, temperatures and other environmental conditions which exist in different parts of the country and even within a state. If other, more seasoned regulatory bodies, face challenges about with the meaning of “reasonableness” it’s fair to conclude that it’s premature for the USDA to hold hemp growers to this standard.
Regulation of any type of license is an ongoing exploratory process where rules are constantly subject to change. There is a lot of work to do and it’s going to take a lot of heavy lifting to move hemp farmer regulation forward. Looking to other regulatory models won’t provide all of the answers, but it might lighten the load.
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Maureen West is the General Counsel and Compliance Officer for Functional Remedies, LLC, a hemp oil product manufacturing company headquartered in Boulder, CO. Prior to joining Functional Remedies, Maureen served as the first Industrial Hemp Program Manager in the United States at the Colorado Department of Agriculture. Prior to entering the industrial hemp industry, Ms. West provided legal counsel as an assistant attorney general for the Colorado Office of the Attorney General where she represented over a dozen regulatory boards including the Dental Board, Nursing Board, Physical Therapy Board, Acupuncture and Direct-Entry Midwife Programs. Ms. West is an adjunct professor at the University of Denver where she teaches Health Care Public Policy and the Legislative Process and Legal Issues in Global Health Care Management.