Legal Opinion on Authorities for Hemp Production

May 28, 2019

Update as of October 31, 2019: The General Counsel’s legal opinion pertaining to the cultivation of hemp under the 2014 Farm Bill remains in effect for that program. Hemp production under the 2018 Farm Bill is governed by the regulations published in the Federal Register on October 31, 2019. The regulations at 7 C.F.R.§990.2 provide that States and Indian tribes may submit plans for hemp production in the State or territory of the Indian tribe for which it has jurisdiction. A State or Indian tribe may not regulate or prohibit hemp production in areas it does not have jurisdiction. For more information visit our Hemp webpage.

Original Notice:

The Agriculture Improvement Act of 2018 (2018 Farm Bill) authorized the production of hemp and removed hemp and hemp seeds from the Drug Enforcement Administration’s (DEA) schedule of Controlled Substances. In response to questions raised concerning provisions pertaining to the interstate transportation of hemp and who may obtain a license to produce hemp, the U.S. Department of Agriculture’s Office of the General Counsel (OGC) has concluded the following:

  1. As of the enactment of the 2018 Farm Bill on December 20, 2018, hemp has been removed from schedule I of the Controlled Substances Act and is no longer a controlled substance.
  2. After USDA publishes regulations implementing the new hemp production provisions of the 2018 Farm Bill, States and Indian tribes may not prohibit the interstate transportation or shipment of hemp lawfully produced under a State or Tribal plan or under a license issued under the USDA plan. 
  3. States and Indian tribes also may not prohibit the interstate transportation or shipment of hemp lawfully produced under the 2014 Farm Bill.
  4. A person with a State or Federal felony conviction relating to a controlled substance is subject to a 10-year ineligibility restriction on producing hemp under the Agricultural Marketing Act of 1946. An exception applies to a person who was lawfully growing hemp under the 2014 Farm Bill before December 20, 2018, and whose conviction also occurred before that date.

View an executive summary along with a complete legal analysis of the above listed OGC conclusions (pdf).