The Agriculture Improvement Act of 2018 (“2018 Farm Bill”) legalized hemp by removing the crop and its derivatives from the definition of marijuana under the Controlled Substances Act (“CSA”) and by providing a detailed framework for the cultivation of hemp. The 2018 Farm Bill gives the US Department of Agriculture (“USDA”) regulatory authority over hemp cultivation at the federal level. In turn, states have the option to maintain primary regulatory authority over the crop cultivated within their borders by submitting a plan to the USDA.
This federal and state interplay has resulted in many legislative and regulatory changes at the state level. Indeed, most states have introduced (and adopted) bills that would authorize the commercial production of hemp within their borders. A smaller but growing number of states also regulate the sale of products derived from hemp.
In light of these legislative changes, we are presenting a 50-state series analyzing how each jurisdiction treats hemp-derived cannabidiol (“Hemp CBD”). Each Sunday, we summarize a new state in alphabetical order. Today, we turn to Kentucky. This might come as a surprise to some readers, but Kentucky is one of the more hemp friendly states in the U.S.
Kentucky’s definition of industrial hemp mirrors the definition in the 2014 Federal Farm Bill. The Kentucky Department of Agriculture (“KDA”) oversees the state’s Industrial Hemp Research Pilot Program (the “Program”). Per the program, licenses are required to cultivate, handle, process, and market hemp. The application period this year for cultivators, as well as processors and handlers, has already closed.
To legally grow hemp, a cultivator must apply with KDA. Kentucky, unlike many other states, has robust regulations and requirements for hemp cultivators. Kentucky includes express provisions for hemp pesticide use, and requires all hemp cultivators to enter into a hemp grower licensing agreement with KDA. This is much more comprehensive than some other states that have little oversight over hemp cultivators.
Kentucky also imposes strict licensing requirements on hemp processors and hemp handlers. Hemp licensees must follow strict hemp manufacturing, testing, and labeling requirements . There are even animal feed requirements. Hemp in its wholesale form also may not be sold to non-licensees within Kentucky.
In Kentucky, Hemp CBD products are lawful, but certain hemp products are clearly prohibited including the following:
- Hemp cigarettes;
- Hemp cigars;
- Chew, dip, or other smokeless material consisting of hemp leaf material or hemp floral material; and
- Hemp leaf material or floral material teas.
In addition, only hemp license holders may possess or distribute whole hemp buds, ground hemp floral material, ground hemp leaf material, or any hemp product with more than 0.3 delta-9-THC.
As we’ve written previously, Kentucky is one of the few states that actually prohibits smokeable hemp, in spite of its pretty lax standards when it comes to the sale of Hemp CBD (in stark contrast to states like California or even the FDA, which claim that many Hemp CBD products are unlawful but say nothing about smokeable hemp). Though the regulations are not quite as clear on vapor products, given the current climate around vapor products generally and Kentucky’s position on other smokeable hemp products, Kentucky is not a good state in which to distribute any smokable hemp products.
Stay tuned to the Canna Law Blog for developments on hemp and Hemp CBD in Kansas and other states across the country. For previous coverage in this series, check out the links below: