On August 23, 2019, the U.S, Environmental Protection Agency (“EPA”) published a notice seeking public comment on ten pending applications to amend existing registrations of agricultural pesticides to add hemp as an approved target site. See 84 Federal Register 44296 (August 23, 2019)
Interest in hemp has grown enormously since the enactment of the Agriculture Improvement Act of 2018, colloquially known as the Farm Bill. Hemp is simply another term for the cannabis plant, also known as marijuana. The Farm Bill legalized the cultivation of and interstate commerce in hemp, defined as the cannabis plant containing less than 0.03 % THC [delta-9-tetrahydrocannabinol; the psychoactive constituent of cannabis]. Plants containing above 0.3% THC remain classified as an illegal Schedule 1 drug under the Controlled Substances Act.
The legalization of what is also known as industrial hemp has been greeted with great interest by the agricultural community. In some areas, such as upstate New York, hemp is seen as an alternative crop that might help save failing dairy farms. It is also seen as a natural corollary to increased cultivation of hops to meet the demands of the burgeoning craft brewery industry.
EPA has received applications to amend the registrations of ten products from three registrants: Agro Logistic Systems, Inc. of Diamond Bar, California; Marrone Bio Innovations of Davis, California; and Hawthorne Hydroponics of Santa Rosa California. Hawthorne Hydroponics is a subsidiary of Hawthorne Gardening, itself a subsidiary of Scotts Miracle-Gro. Hawthorne is Scott’s vehicle for creating a space servicing the cannabis industry.
The ingredients in question are mostly biologic pesticides, and all hold exemptions from the requirement for a food tolerance. The proposed use patterns are within those already approved for the products in question.
EPA acknowledged that these proposed amendments do not meet the minimum standards of the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”) for required public notice of pending applications. Nonetheless it stated that sufficient public interest in hemp justified seeking public comment at this initial stage, but would not continue to publicize the increasing number of applications which it expects to receive.
Comments are due September 23, 2019, and can be filed at www.regulations.gov
With the Supreme Court striking down the Professional and Amateur Sports Protection Act (“PASPA”), the ruling opens the way for states to legalize sports betting. In wake of the ruling, many news organizations have been quick to compare how this ruling might affect future state legalization of cannabis. While on the surface the legal posture on each issue appears to share commonalities, the legislative differences mean this decision offers no route to state cannabis legalization.
To understand the differences between the two legislative efforts, one must understand the difference between Federal statutory directions to state versus private actors. As the name suggests, state conduct refers to state actions while private conduct refers to the actions of individuals. PASPA controlled state conduct, forbidding states from legalizing sports betting. The Supreme Court ruling on PASPA rested on the “anti-commandeering” principle, which dictates the Federal government is constitutionally precluded from dictating state conduct. Since there are no Federal statutes that contain a prohibition for private conduct on sports betting, legislatively state legalization on sports betting will face no impediment.
In the case of cannabis, there are multiple Federal laws that make private cannabis-related conduct illegal, rendering the PASPA legislative ruling fundamentally different. Due to these multiple Federal laws prohibiting cannabis-related private conduct, even if states move to authorize legislation legalizing cannabis-related private conduct, Federal criminal laws would still prohibit its criminal use.
With state-level cannabis legalization for medical and recreational use sweeping across the United States, policymakers have found themselves limited in their ability to share developments and best practices within the cannabis industry. To alleviate this information bottleneck, the New York State Bar Association created a new Cannabis Law Committee to facilitate information-sharing amongst lawyers on developments within cannabis policy.
Telisport Putsavage, of Putsavage PLLC and EnviroReg LLC, has been appointed to represent the Environment and Energy Section on the Cannabis Law Committee, in which only 20 people out of 70,000 were selected. Mr. Putsavage will be joining ranks with other lawyers to discuss the conflicting state and federal cannabis laws and how best the state of New York can develop its cannabis industry. Mr. Putsavage’s specific connection to the industry is his representation on matters related to the use of pesticides in the cultivation of cannabis.