Legalized nationwide in late 2018, farming of industrial hemp is still subject to federal oversight; states, territories and native tribes were given about two years to craft their own regulations and submit them for USDA approval. So far, the USDA has given the go-ahead to the plans of about twenty states and dozens of native tribes and federal territories, but Colorado hasn't gotten the okay, with the state's current status listed as "pending resubmission."
Five other states — California, Illinois, Missouri, Oklahoma and Utah — currently have the same status.
Both the USDA and the Colorado Department of Agriculture insist that Colorado's plan, championed heavily by Governor Jared Polis, has not been rejected, but is simply going through revisions.
"The Colorado state hemp plan has not been rejected. USDA has reviewed the draft Colorado hemp plan, provided edits and is continuing to work with Colorado state officials," says a USDA spokesperson, who notes that the federal agency may formally approve the plan after Colorado incorporates the USDA's edits.
However, there may be more involved than simply incorporating Uncle Sam's suggestions. While CDA communications director May Peck emphasizes that Colorado's plan hasn't been rejected, she uses the term "negotiating" to describe the current dialogue between the state and the federal ag departments.
"Colorado's state hemp plan has not been rejected; the department has been asked to either 'revise' or 'clarify' specific areas in our plan and appendix. There is no mention of rejection, and we are working on the revisions now," Peck says. "We're not yet at the point that we can publicly share the details of what we are negotiating."
Polis, state lawmakers, agriculture regulators and hemp farmers have been pleading with the USDA for less restrictive rules since the department's interim hemp guidelines were released in October 2019. Colorado officials criticized the Drug Enforcement Administration's involvement in THC potency testing as well as the required destruction of any hemp that tests for over 0.3 percent THC; they were also concerned about unclear language regarding where hemp will be stored between harvest and testing.
Under Colorado's initial proposal, hemp farmers would have their plants tested at independently certified hemp-testing labs rather than those certified by the DEA, and those whose plants tested above 0.3 percent but less than 1 percent would largely be protected from criminal charges; under the USDA's rules, the farmers would have been more vulnerable to charges of criminal violations, according to hemp-industry attorneys.
The CDA's original plan also tasked future state stakeholder groups led by the ag department with more detailed hemp rulemaking instead of calling for immediate implementation of statutory language, and provided the state ag commissioner with more power and flexibility during disciplinary actions.
“As we have done from day one, CDA is working through the state plan submission and approval process in a careful and comprehensive manner to best serve the needs of Colorado,” said Colorado Commissioner of Agriculture Kate Greenberg in response to the USDA's actions. “Given the many changes at the federal level, we are working hard to create a stable and sound regulatory environment so that Colorado’s hemp industry can continue to lead the nation.”
CDA’s Colorado Hemp Advancement and Management Plan had incorporated feedback from numerous stakeholders, including farmers, processors and product manufacturers, state and local government agencies, health-care professionals, financial-services providers, law enforcement and academic institutions, as well as consultation with Southern Ute and Ute Mountain Ute tribes.
Update: This post has been updated to include the statement from Kate Greenberg.