New Industrial Hemp Regulations Proposed by CDFA
By Lauren Mendelsohn
January 11, 2020 (updated February 24, 2020)
On Monday, February 10, 2020 the California Department of Food & Agriculture (CDFA) submitted proposed emergency regulations regarding industrial eligibility and registration for the state’s industrial hemp program to the Office of Administrative Law (OAL). Specifically, CDFA is proposing to adopt Sections 4901 and 4902 of Title 3, Division 4, Chapter 8, Article 2 of the California Code of Regulations. The act of filing the proposed regulations with the OAL began a minimum 5-calendar day public comment period during which any interested party can submit feedback regarding the proposed regulations. Instructions for how to submit a comment are included at the end of this blog post.
Emergency Notice (Section 4901-4902)
Finding of Emergency (Section 4901-4902)
Text of the Proposed Emergency Regulations (Section 4901-4902)
Finding of Emergency – Updated 2/24/2020 *NEW*
Text of the Proposed Emergency Regulations – Updated 2/24/2020 *NEW*
The purpose of these proposed emergency regulations is to bring California’s regs into line with Federal law and regulations in light of the Agricultural Improvement Act of 2018 (also known as the “2018 Farm Bill”) and the United States Department of Agriculture’s (USDA) Interim Final Rule on Domestic Hemp Production. Additionally, the proposed emergency regulations would implement Senate Bill 153, which was approved by California Governor Newsom on October 12, 2019 and took effect on January 1, 2020.
Perhaps most notably, as far as operators in California are concerned, is the proposed restriction against holding an industrial hemp license for anyone who has been convicted of a State or Federal drug-related felony in the past 10 years. This is already part of the federal rules and was codified into state law by SB 153 as Food & Agriculture Code § 81013, which went into effect on January 1, 2020. However, during much of the 2019 year, industrial hemp growers in California could register with their county agricultural commissioner without any investigation done into their criminal history since this requirement was not yet in effect. Therefore, it is likely that a number of current registrants are no longer eligible to participate.
In the emergency regulations being proposed currently, the CDFA sets forth the requirements for the criminal history report that industrial hemp applicants and all “key participants” will have to complete as part of their registration application. A “key participant” is defined in Proposed Section 4902 as any person in the entity producing industrial hemp who is (A) a sole proprietor, a partner in partnership, or a person with executive managerial control in a corporation producing industrial hemp; or (B) a person with executive managerial control over the entity producing industrial hemp, including persons such as a chief executive officer, chief operating officer and chief financial officer. A “key participant” does not include a person in a management position with no executive managerial control over the entity producing industrial hemp, such as farm, field, or shift managers.
While the criminal history requirements will result in disqualifying (at least temporarily) many skilled hemp cultivators, it has to be done in order for California to comply with federal guidelines. That being said, there is a ray of hope for individuals who’ve suffered a drug-related conviction in the past 10 years: if the conviction was overturned on appeal, pardoned, expunged, or if the case was dismissed after the individual is allowed to withdraw their original plea and enter a plea of not guilty, then under Proposed Section 4902 the conviction would not count as a “disqualifying conviction” for the purposes of hemp licensing.
Neither the proposed regulations nor the underlying statute differentiates past cannabis-related convictions from past convictions involving other illicit drugs. Additionally, under California state law, someone cannot be denied a cannabis license simply because of a past drug-related conviction (cannabis or otherwise). Thus, the proposed regulations would make it more restrictive, at least in the sense of past convictions, to obtain a license to grow non-intoxicating hemp than it would be to grow cannabis.
Proposed Section 4901 would create industrial hemp registration timeframes, definitions, and procedures, also consistent with Senate Bill 153. Under §4901 as proposed, registered growers and breeders must notify the county of certain changes to their registered businesses or site, and they must re-register annually. Further, county agricultural commissioners may deny applications based on application deficiencies, but applicants will have a 30-day notice and opportunity to make corrections.
Comments on this proposed emergency rule-making action can be submitted to the OAL Reference Attorney by mail to 300 Capitol Mall, Suite 1250, Sacramento, California 95814; by fax to (916) 323-6826; or by e-mail to both staff@oal.ca.gov and Rachel Avila at Rachel.Avila@cdfa.ca.gov. Be sure to include the OAL file number with your comment, which is 2020-0210-01E.
More information about this proposed emergency action and other industrial hemp laws and regulations can be found on CDFA’s website.
NOTE: On Monday, February 24, 2020 the CDFA issued an updated version of the proposed emergency regulations and an updated Finding of Emergency. Links to those are included above.
This information is provided as a public educational service and is not intended as legal advice. For specific questions regarding industrial hemp or cannabis, please contact the Law Offices of Omar Figueroa at (707) 829-0215 or info@omarfigueroa.com to schedule a confidential legal consultation.