Hemp Stakeholders Letter to CDA - Regarding Rule Changes 2015
January 19, 2015
To Duane Sinning, CDA, and the Industrial Hemp Advisory Committee Members:
This letter is being submitted through the cooperation of a group of stakeholders who are interested in the industrial hemp movement in Colorado. Some of us are farmers, some are researchers, some are seed developers and some are processors of this fantastic plant. Most of us grew IH this year, but not many of us grew large quantities. We would like to express some of our concerns with the proposed changes in regulations.
We understand the need for there to be additional requirements in order to track and evaluate the data as it emerges from the farming and processing of this relatively new crop for our state. However, some of the proposed regulations will unfortunately have the effect of discouraging, not encouraging, Coloradans who are about to embark on the road to this new industry. Our collaborative comments follow.
Part 1: Definitions
On page 1 of the Rules Pertaining to the Administration and Enforcement of the Industrial Hemp Regulatory Program Act, Definition 1.2 states that “‘commercial’ means the growth of industrial hemp by any person or legal entity other than an institution of higher education or under a pilot program administered by the department for purposes of agricultural or academic research in the development of growing industrial hemp”. This paragraph needs clarification. Although it is true that some individual efforts are directed toward an end ‘commercial’ product, there are several individuals who conducted legitimate research during the 2014 season. These individuals should be able to work with the state to provide the needed data that is so sorely lacking in this endeavor. Perhaps a clause to allow individuals to submit an R&D plan to CDA would be appropriate since the fees and the requirement of affiliation with an institution of higher learning for pure research will tend to discourage individuals from pursuing innovative ideas. With this allowance, CDA could then decide which category the proposal falls into- ‘pure’ research or ‘marketable’ research. Those conducting ‘pure’ research would be required to submit a report to CDA outlining their findings post-harvest, adding to the state’s body of knowledge. And, because those who conduct pure research would hopefully pay lower fees initially, fines might be in order for those who do not comply and submit a report. We believe that the state is missing a great opportunity by limiting R&D to institutions of higher education, especially when the type of R&D conducted at that level also results in a marketable product.
Item 1.7 on Page 1 defines industrial hemp but IH is called cannabis in subsequent items. This creates confusion throughout the document and could be clarified by italicizing the word Cannabis.
Page 1, Item 1.9.11, repeats the narrow definition of R&D, and would need to be revised if the committee considers expanding the definition of R&D to include authentic research.
Page 2, Item 1.12 includes, in the definition of variety, ‘plants that exhibit the same observable physical characteristics’. Because many plants within a family and some unrelated plants may have similar observable physical characteristics, it might be prudent to eliminate that clause and simply use the descriptor that ‘varieties have the same genetic composition’.
Part 2: Registration
Part 2 of the rules pertains to registration for the 2015 season. Page 2, Item 184.108.40.206, addresses the sampling and lab fee cost for farmers. The fees were not very equitable during the 2014 season, and we would like to suggest that CDA determine a flat fee which is the same for each individual tested. This might be done by calculating the total amount generated by the testing fees divided by the number of farmers tested in 2014, and adding a cushion of 20+%. Otherwise, farmers in the far-flung corners of the state, some of Colorado’s best agricultural land, will become discouraged with the exorbitant fees (2.9 & 2.10, p4 and 4.4.1, p 7). If CDA really wants Colorado to become a competitor in this new industry, the needs of farmers statewide will need to be addressed, as many do not grow along the I25 corridor. There is also some question about 2.12, p4, “All plant material must be planted and harvested within the registration period.” How does this apply to indoor growers? Can an extension be granted or must they harvest a crop that may be immature?
The wording on Page 3, items 2.4, 2.5 and 2.6, is ambiguous. As stated previously, many of us would like to see the word ‘cannabis’ replaced with ‘industrial hemp’ in those statements and throughout the document. Due to the legal status of medical and recreational cannabis in Colorado, there needs to be a clear delineation between the two, and farmers/ caregivers who grow personal plants for such use should not be restricted from growing IH by arbitrarily large distance limits. These cannabis plants will always exceed the .3% THC limit required of IH, but there is no reason to be concerned about cross-pollination in these cases, as ‘cannabis’ growers will focus on growing female plants for their needs. They would be more concerned about the IH pollen causing their female plants to go to seed. Taxonomically, the classification for all of these plants is Cannabis sativa L., another reason to distinguish plants by intent of use. This group feels that IH should remain under the jurisdiction of CDA, and that referring to IH by other names might transfer control to the Marijuana Enforcement Division. Have any concessions been made in this area? Some are wondering if growing areas separated by a fence or wall would be adequate. It is important that we find a responsible way to regulate developers of medicinal hemp cultivars that does not prohibit or unnecessarily stifle their work.
Item 2.7, p4, indicated that each non-contiguous land area will require a separate registration. Not only does this penalize small farmers who have discrete and separate land areas, it also discourages R&D from those who might want to do site-specific studies. At a minimum, registration fees should be reduced in these cases. There is also some concern about Item 2.14, Page 4, “registration fees will not be refunded if a registration is not granted”. Although we feel that an administrative fee would be in order, keeping $500+ of a farmer’s money seems excessive. Additionally, Item 2.15, p4, might simply read ‘Any changes to original contact information must be provided to CDA (a certain number of days) before harvest’. This could save time and effort if information is modified more than once. It appears that Item 2.15, p4, is reiterated in the next section, Part 3: Reports, Item 3.7 on Page 6, and could possibly be eliminated entirely.
Part 3: Reports
There is some concern about the redundancy of Items 3.2, p4, and Items 3.2.1, and 3.2.2 on Page 5. Although we appreciate the CDA’s attempt to gather data on the 2015 crops, much of this information has already been submitted with the registration form. Would it be possible to create a venue where farmers could simply verify or change the initial information without having to resubmit extensive paperwork? Since individual growers are no longer permitted to grow under an R&D registration unless affiliated with an institution of higher learning, holding them to the same expectations as large commercial growers may tend to discourage innovation from individuals. There is also some concern about Item 3.3.2, p5. IH, like any crop, is dependent on climatic conditions. It may sometimes be possible to predict harvest a month beforehand, but not always. Two weeks notification would probably result in a more accurate estimate of harvest time.
Although one can consider the ‘intended use’, as required in Item 3.4.2, p5, that will ultimately depend on the available infrastructure in the state at harvest time. Is storing the hemp until the market emerges an option for Items 3.3.1 and 3.4.2 on p5? Do Items 3.1-3.3 refer to commercial registrants while Items 3.4-3.6 apply only to R&D? It appears that the items listed under 3.1 on p4 are repeated several times- could some of the redundancy be eliminated or combined? Doesn’t Item 3.7 on Page 6 cover Item 2.15, p4, which was discussed in a previous paragraph? Could Item 2.15 perhaps be eliminated then?
Part 4: Inspection Program
Page 6, Items 4.1- 4.3 continue to address IH as ‘CANNABIS’ rather than industrial hemp, which leads to confusion and a possible melding of the CDA and MED. Although we understand the rationale for using the genus to describe both industrial hemp and marijuana, this designation is confusing. At the very least, italicizing Cannabis would indicate recognition that both industrial hemp and marijuana plants belong to the same genus, when cannabis (not italicized) generally refers to medical applications in the eyes of the public. Using the term ‘industrial hemp’ would clarify that it is a non-psychoactive crop and possibly make hemp fields more palatable to those who do not understand the difference. There was also some question as to why inspectors would need unrestricted access to seeds as specified Item 4.2, p6, and whether this would give them authority to destroy seed.
On Page 6, Item 4.3.4 implies that anyone whose composite plant sample tests greater than .3% is deliberately non-compliant. This is not necessarily the case, since THC content can vary from plant to plant, and be expressed more fully under certain climatic conditions. It would be of no benefit to farmers to attempt to ‘hide’ a high THC strain among the IH plants- it would be much simpler to gather the IH pollen to fertilize the high THC females. This item may be intended to deter certain types of inter-plantings, but may have undesired ramifications for the well-intentioned farmer. Can registrants submit a contingency plan in case their crop tests ‘hot’?
Although we have heard that every farmer will be tested, Item 4.1, p6, indicates that the ‘Commissioner MAY select up to 100% of the registrations to be tested’, so we aren’t totally clear on what the protocol will be. As was previously discussed in Part 2: Registration, the CDA needs to develop an equitable approach to testing, so that farmers who grow in primarily agricultural areas are not penalized or discouraged by exorbitant fees. Page 7, Item 4.4, addresses the fees involved for testing, which can be considerable for growers outside the Front Range corridor. Since most areas of the state have a university extension office, would it be possible for those representatives to conduct the sampling? Additionally, small farmers may need to sell their crop in order to obtain the funds necessary to compensate CDA for testing fees (4.4.1, 4.4.2, p7). Without adequate infrastructure for purchase of the crops, these farmers will be at a disadvantage. Obviously, farmers who grow plants for CBD medicines will see a greater return on their investment than those who grow for seed or fiber. Is it possible that Item 4.4.2, p7, might be extended for them or for registrants conducting legitimate R&D?
Part 5: Waiver
Do waivers apply only to registrants growing for R&D purposes? What about R&D growers who are forced to register as commercial growers in 2015?
Throughout Part 5, Industrial Hemp is used instead of Cannabis. One or the other should be used consistently throughout the document. Although we applaud the use of Industrial Hemp in this section, it changes the language used in other parts of the proposed regulations.
Part 6: Violations/ Disciplinary Actions/ Civil Penalties The Cannabis/ industrial hemp conflict arises again in Item 6.1.5 on Page 8. Most of us believe the term cannabis should be reserved for medicinal and recreational cultivars. And, although industrial hemp is defined as "’Cannabis sativa’ having a concentration of no more than 0.3% delta-9 tetrahydrocannabidiol”, and recreational cannabis is referred to as "Marijuana" throughout Amendment 64’s wording, many of us prefer to use industrial hemp to describe the non-psychoactive plant and cannabis to describe its psychoactive relative. We feel that it is not the job of CDA to police marijuana, and, as stated previously, it is highly unlikely that any IH farmer would want to grow ‘cannabis’ in a hemp field. Additionally, by changing the term ‘industrial hemp’ to ‘cannabis’, CDA has changed the wording of Part 9.1, Section 5, p8, Statements of Basis, Specific Statutory Authority and Purpose. The other items listed under violations seem reasonable and acceptable.
Parts 7&8: Reserved
Part 9: Statements of Basis, Specific Statutory Authority and Purpose
Concerns addressing the purpose of the rules in each part of this document have been addressed in each part.
The factual and policy basis of the rules are clear. However, registrants would like to be notified when public meetings are to be held. It would also be acceptable if committee members were appointed by representatives from various agricultural areas of the state. (#2, #3, p9). We appreciate that registration deadlines have been removed. We also understand that the CDA needs ‘lead time’ in order to schedule sampling. However, a 30 day notice is not always practical in terms of specific cultivars and climatic conditions. This is especially true when farmers are planting cultivars from different latitudes, since Cannabis tends to be somewhat latitude-dependent. It is not reasonable to expect growers to be able to predict, with accuracy, 30 days before their intended harvest. 2 weeks is a much more reasonable time frame. Redline rationales for the proposed rule changes, as stated on pp 10-16, have been addressed previously under each ‘Part’ supplied on pp 1-8. We appreciated the reasoning and effort behind the proposed rule changes, although we may have some legitimate concerns re: some of them.
Several members of the group expressed concern that CDA might become an extension of MED, and suggested that CDA remain its own entity. None of the funding from the IH program should be diverted toward marijuana enforcement. There is also repeated concern about the arbitrary distance limits for registrants who grow medical cannabis and industrial hemp, as well as a general feeling that registration and testing fees should be equitable and affordable for both small farmers and larger businesses. Several expressed disappointment in the transfer of R&D to institutes of higher learning and the limitations imposed by this change in regulations.
While this letter addresses several of the major concerns of this stakeholder group, it is by no means a comprehensive list.Other questions may arise during the development and implementation of new regulations. As an individual attempting to compile the queries and comments from a number of people, it’s entirely possible that something I missed may emerge in the future. All of us want to comply with CDA, but our concerns are legitimate. We do not want to see the potential of industrial hemp handed off to a group of large corporations. We would like to see small farmers be able to save their farms. We would like to see innovative entrepreneurs develop IH industries within the state. We would like to see everyday Coloradans with energy and ideas continue to build this industry here. Please allow us that opportunity by leveling the playing field for all of us.
Thank you for your consideration and willingness to make this new industry work for all Coloradans.
Sincerely, the undersigned stakeholders: