Q&A: Why Kentucky is fighting for hemp in federal court

The Kentucky Department of Agriculture is suing the U.S. Drug Enforcement Administration and other federal authorities in a fight over hemp seeds. Here’s a look at why officials who had planned to be at a farm Friday will instead be in a courtroom.

What is hemp?

On the plant that makes the marijuana flower, hemp is the portion that contains only tiny amounts of the psychoactive chemical compound THC, which fuels the “high” of the popular drug.

Farmers have harvested hemp to weave cloth from its fibers and make food from its seeds. But those farmers have had to do their digging outside the U.S. since the country outlawed marijuana and its cousins in 1937 during the “reefer madness” era.


Alhough Kentucky says industrial hemp poses zero potential for drug abuse, federal authorities consider it a top-level narcotic whose domestic cultivation is banned. Imports of paper, clothing, rope and cosmetics made from hemp are OK.

In February, President Obama signed into law a measure allowing academic researchers to grow and market hemp in states that authorize it. The research is meant to inform lawmakers on whether commercial production should be legalized.

What is Kentucky trying to do?

Days after the federal law was signed, Kentucky announced plans to start about a dozen pilot projects to plant about an acre each of hemp. It’s now one of 14 states that have authorized hemp research, according to the advocacy group Vote Hemp. The others are California, Colorado, Hawaii, Indiana, Maine, Montana, Nebraska, North Dakota, Oregon, Utah, Vermont, Washington and West Virginia

Kentucky bought 250 pounds of Italian seeds and planned to have researchers start planting them in late May, when conditions are perfect. They’re hoping to learn which seeds thrive in which soils and what equipment best harvests the coarse stalks.

What did the DEA do?

As the seed shipment recently made its way to the Kentucky Department of Agriculture, U.S. Customs and Border Protection officers put a hold on the package at a UPS facility at Louisville International Airport, according to the state.

The DEA’s position is that states are free to start testing hemp crops. But a separate law in place since 1970 says no one can import hemp seeds without getting a permit that classifies them as drug importers. In a letter this week, the DEA said it would take only a few days to process permits for the state’s Agriculture Department and its associated universities.

Why doesn’t the state get the permit?

Agriculture officials say it would be too burdensome and is unnecessary given the new law.

Holly VonLuehrte, chief of staff for the state agriculture commissioner, told the Los Angeles Times that the DEA had refused to list the responsibilities that would come with the permit.

Under a permit, VonLuehrte said, Kentucky suspects it would be required to protect crops with barbed-wired fences and other costly security measures.

“We could’ve gone through all this before,” she said. “What was the point of the farm bill [signed by the president] if they want to make us go through this now?”

The state sued because it wants a federal judge to confirm its assertion that the new law supersedes all others on the books.

“We just need someone to settle the law so no other state has to deal with what Kentucky has been through,” VonLuehrte said. “Right now, the law is whatever the DEA says it is.”

The DEA wrote in a letter this week: “Our position is based on the well-settled principle that repeals of existing statutes by implication are not favored. Where, as here, there is a reasonable way to harmonize the new law with the existing law so as to give effect to both, this is the preferred approach.”

What’s next?

The U.S. District Court in Louisville scheduled a preliminary hearing in the state’s case for Friday afternoon.

One question Kentucky is likely to pose is, how can the DEA justify its lack of enforcement against state-legalized marijuana and hemp sales in Colorado while pushing so hard against a federally authorized hemp program?

“The DEA arbitrarily intervenes into a perfectly legal process in Kentucky, all the while turning a blind eye to marijuana production in Colorado, where it’s been said there are more marijuana stores than Starbucks,” Agriculture Commissioner James Comer wrote in a statement Thursday.

VonLuehrte said Kentucky sees potential in hemp production to replace jobs lost during the recession, including in construction, manufacturing and coal mining. Kentucky’s corn fields were once a top producer of hemp, state officials have noted.

The state’s position is backed by its senior U.S. senator, Minority Leader Mitch McConnell, who said he helped draft the hemp legalization provision.

“The agency should immediately release the hemp seeds so Kentucky pilot projects can get underway, which will ultimately lead to more economic opportunities in our state,” McConnell said Thursday.

In the meantime, Kentucky has put a hold on additional orders of seeds, including from Canada and China.

A group known as Growing Warriors, working through Kentucky State University, had planned to plant a batch of seeds Friday until thwarted by the DEA. The research group threatened to plant some donated seeds, but then said Thursday they would hold off pending the lawsuit. The DEA has also said schools cannot contract with private farmers to assist in the pilot projects.