Will smokable hemp come to Kentucky?

Photo by Jacob Mulliken, Messenger-Inquirer/jmulliken@messenger-inquirer.com

In its first year of federal legality, hemp has offered a bevy of possibilities in what many believe to be a limitless market. Fiber, clothing, industrial, foodstuffs, beauty, health and the CBD are all viable markets. However, one avenue that many states like Tennessee and Indiana have supported, which is still illegal in Kentucky, is smokable hemp. A fringe hemp market that has proven t be one of the industry's fastest growing.

When it comes to hemp, it's estimated that there are more than 25,000 applications for the plant, including textiles, technical textiles, industrial products, building materials, paper, food stuffs, and energy, environmental and health products.

In terms of the hemp market, the sky seems to be the limit.

However, in a seemingly endless market, there remains one facet that Kentucky has not capitalized on -- smokable hemp.

Smokable hemp is the flower of the hemp plant that consumers are smoking to derive the "health-benefits" believed to be inherent in CBD (cannabidiol), currently the major market commodity in the first legal year of widespread hemp production. The question remains, with myriad CBD products on the market, why choose to smoke it?

The answer is simple, said Joe Kirkpatrick, Tennessee Growers Coalition president and chief lobbyist.

"It is popular," he said. "I think people automatically assume people want to smoke cannabis just to get stoned, and it isn't true. People like cannabis, period. You are smoking hemp for the benefits of CBD. I know a lot of people that are using it to replace tobacco, and why not use something natural with untold health benefits to stop something that you know will kill you?"

The primary issue for many states, despite hemp's federal legalization through the Hemp Farming Act, a part of the 2018 Farm Bill, is that law enforcement is having a difficult time distinguishing between hemp flower and marijuana, he said.

Law enforcement's issues have been the bane of many states adopting smokable hemp, however, as hemp entered into being federally legal, many states, like Tennessee, Indiana and Pennsylvania, have put their legislative foot down and allowed the quickly growing smokable market to thrive.

In Indiana, for example, U.S. District Judge Sarah Evan Barker sided with the Midwest Hemp Council and seven state hemp wholesalers who sued the state over its ban on smokable hemp in September. The manufacturers argued that because of the 2018 Farm Bill authorized all forms of hemp, states couldn't keep one form illegal, and Barker agreed.

"Law enforcement's confusion over hemp versus marijuana doesn't mean states can consider some forms of hemp a controlled substance," she wrote. "The fact that local law enforcement may need to adjust tactics and training in response to changes in federal law is not a sufficient basis for enacting unconstitutional legislation."

Tennessee had its own hiccups early on with "unlawful" practices on the part of law enforcement with the botched, "Operation Candy Crush." On Feb. 12, 2018, 23 Rutherford County businesses were shutdown for selling CBD products, which were not illegal. The raids were carried out by the Rutherford County Sheriffs Office and local agencies along with backing by the TBI, DEA and FBI. The businesses were padlocked after undercover agents allegedly bought candy that contained CBD. Ultimately, the case was dismissed and those businesses that were affected reopened and filed suit.

Law enforcement's treatment of hemp-derived CBD products has since ebbed in Tennessee and in 2018, smokable hemp brought in roughly $11.7 million and is projected, at the end of the 2019 growing season, to bring in more than $70.6 million, making smokable hemp a "no-brainer," said Kirkpatrick.

"If they (Kentucky) are in it for the farmers, then they need to open it up," he said. "Smokable hemp flower brings drastically higher prices with the farmer making anywhere from $80 to $180 a pound for flower as opposed to $25 a pound for the biomass that the CBD oil is derived from. It is a no brainer. There is certainly more labor involved, but the margins are still way better in the end."

Aside from opening every possible door into the hemp market as they can, many Tennessee legislators are also pushing for consumer protections for those who use ingestible and smokable hemp products. Three in particular, state Senators Frank Niceley and Janice Bowling, along with state Rep. Jay Reedy, are moving toward protections in employee drug testing, through defining reasonable levels of THC (tetrahydrocannabinol) in blood, urine and other methods for those that regularly consume hemp and hemp-derived products, given that the trace amounts of THC (less than 0.3%) found in hemp products are now federally legal.

Another aspect of the state's 2020 legislative priorities, spearheaded by Reedy and Bowling, specifies that hemp and associated products, other than isolated THC, are not subject to scheduling as a controlled substance and will no longer be subject to forfeiture based "solely" on their composition. They are also seeking to prohibit police searches based "solely on the odor of cannabis," increasing consumer protections and nurturing the smokable market.

"Our consumers vote for us and we try to take care of them," Niceley said. "We have some growers that are doing a great job with the smokable. If it is good and tastes and looks good, the sky's the limit on that stuff.

For Niceley, one of Kentucky's obstacle could very well be its "protectionism" of tobacco.

"I don't know what is wrong with Kentucky, you run a deficit all the time and we have a surplus of a couple hundred million, Kentucky needs to look south and do what we are doing. It is important that you have something for every farmer in the long run, whether that be fiber, seed, livestock feed or smokable hemp."

Ensuring the Kentucky farmer's place in the global hemp market is the goal of the Kentucky Hemp Industries Association (KYHIA), who are watching smokable and all facets of the market, said Tate Hall, KYHIA president.

"Smokable flower is something that we advocate for and most states have some form of flower laws, especially surrounding us, it is something that we have been advocating for," he said. "A farmer can expect a higher price for smokable in states where that can be sold and processed. Obviously, as the industry association, we are for all markets and businesses abroad for the betterment of the industry. Right now, all eyes are on the newly released interim USDA rules and regulations. The Kentucky Department of Agriculture is keeping an eye on that as well, which is why they haven't acted on smokable flower or other changes."

While the interim USDA guidelines do not mention any regulatory practices for smokable hemp, on the state level, under Kentucky revised statutes, it is not legal for anyone to possess raw flower without a license approved by the state, said Sean Southard, KDA's communications director.

"Putting the USDA aside, just here in the state law, the general assembly has said that unprocessed material is not allowed to enter the stream of commerce," he said. "I don't believe that they weighed into. I would hang my hat under current law, it would require a legal change for something like that to change."

Kentucky State Police Public Affairs Commander Sgt. Josh Lawson did not respond to interview requests.

In regard to Kentucky's legislators, the topic of smokable hemp hasn't really come up on the state level, said Rep. Suzanne Miles, Rep. Jim Glenn, Rep. Scott Lewis and Sen. Matt Castlen.

"It hasn't been mentioned to me," Lewis said. "I know the focus has been on growing it and allowing farmers to use it as a potential replacement for tobacco. That has been the primary focus. It has primarily been looking at it as an export."

Miles and Castlen, like Lewis, haven't heard any chatter about the potential of smokable hemp as a new or potential market, but are excited about the future prospects of hemp.

"I think the Kentucky Department of Agriculture has been focused on the potential products that hemp can be used for," Miles said. "Specifically around products like flooring, car parts, building materials, CBD and related products. As far as a smokable product, I haven't heard anything."

Glenn, prior to the 2020 legislative session, is planning of sending a survey to the voters of his district to see what their feelings around legalizing smokable hemp would be.

"The police department isn't interested in it because it causes them problems," he said. "I don't know how the whole district feels. I am going to send my district a questionnaire and ask what they think. I don't have a sense and I want to represent the public."

Admittedly, Kentucky has done well in the first year of legal hemp with 58,000 acres approved for hemp cultivation and more than 1,000 certified hemp farmers. However, in the race for hemp supremacy, diversity is key, and with Indiana, Pennsylvania and Tennessee encouraging hemp markets like livestock feed and smokable hemp, you are either leading the pack or getting picked off, Kirkpatrick said.

"A market is being lost," he said. "The USDA didn't attempt to outlaw smokable. They say there are 25,000 uses for hemp and so many things that can be done. America has the best farmers in the world and if anyone can dominate a space globally through hemp, it is our farmers. Why should our farmers have to be debt slaves? Why does everything have to be an interest payment? Why should they worry about losing their farms? Because there hasn't been an alternative, now there is. Row crop farmers will take over the CBD oil crops, so why not let farmers grow these craft strains and sell them any way they can for maximum profit and grow with an almost limitless market?"

Jacob Mulliken, 270-228-2837, jmulliken@messenger-inquirer.com

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