Tuesday, April 25, 2017
The paradox of hemp
By Tanya Ishikawa
A bee collects pollen from a hemp plant. (Photo courtesy of Margaret MacKenzie, Salt Creek Hemp Co.)
Which came first? The hemp plant or the seed?
Just one of many riddles being contemplated by entrepreneurs in Colorado’s young hemp industry, sourcing seed to grow hemp is not as clear cut as it is with other agricultural crops. Guilt-by-association with its psychoactive cousin, marijuana, meant hemp was banned in Colorado from 1937 until the passage of Amendment 64, which legalized both types of cannabis in 2012.
Even now that hemp is recognized by the state and at the federal level as having “absolutely no” psychoactive potential — and is approved for production by 31 states — Colorado’s industrial hemp industry faces many hurdles. Still, the number of new hemp growing operations has increased rapidly across the state.
The 2013 state law, which sets rules for hemp production, requires that all hemp seeds and plants originate in Colorado, and does not allow imports from outside sources. Since hemp was illegal to grow before the law was enacted, the requirement created a paradox for growers.
“At the beginning, you were just expected to have hemp seeds magically appear,” said Margaret MacKenzie of Salt Creek Hemp Co., who will grow hemp for a third summer in Collbran.
In 2015, Salt Creek grew just one acre of hemp without machine assistance, planting and harvesting it with hand tools. With her “magically sourced” eight pounds of seed, MacKenzie and her partners produced 60,000 plants, which yielded about 500 pounds of seeds and nearly 700 pounds of stalks. She sold about half of the stalks to a buyer who was going to produce materials out of the fiber, and took the seeds to Longmont to be dehulled. A local buyer purchased about 25 pounds of the seed hearts; Salt Creek kept the rest to sprinkle on salads, swirl into bowls of oatmeal, and use in other foods.
“We just didn’t want to waste anything. We saved roots, stalks, seeds and grain materials. As a small grower, it was hard to find buyers. We didn’t have a marketable quantity. It was more experimental,” she said. “It was a lot of learning.”
Difficulty of Managing THC levels
Salt Creek realized that the seeds produced by its first crop were unusable for the next, because the history of their genetics was unknown. The first crop was full of inconsistent-looking plants, obviously from several kinds of cultivars. This put future crops at risk of having THC (tetrahydrocannabinol) levels that were too high.
THC is the active ingredient that causes the psychoactive effect in cannabis. The THC content of dried seeds and plants must be at, or less, than 0.3 percent in order for them to be classified as hemp and regulated by the Colorado Department of Agriculture (CDA). Otherwise, the seeds and plants would be considered controlled substances, to be regulated by the state’s revenue department.
Hemp can be grown from seed or by cloning plants, a process which involves cutting material off an existing plant and using it to grow a new one. For Salt Creek’s second crop in 2016, the partners chose to buy seed from a farmer in a newly created coop on the Front Range.
This time, Salt Creek planted 15 acres with 14 pounds of seed per acre, and purchased a “combine” — heavy equipment for harvesting. Once again, the growers discovered that their seeds’ genetic makeup was unstable. Worse, upon inspection by the CDA, the crop tested “hot,” with a THC level of 0.49 percent.
Maureen West, CDA’s industrial hemp program manager, explained, “We test in various parts of the state to see how hemp does in various environments and at different altitudes.”
Of the growing operations tested, 75 to 78 percent passed the inspections. “We found three varieties of seeds (documented on planting reports from growers) consistently failed,” West said, adding that it is important to realize hemp agriculture is a dynamic, emerging industry – “one we want to see grow.”
The THC levels of Salt Creek’s hemp were nowhere near the 12 to 15 percent considered necessary to get somebody high. Still, the crop could not be sold. Because the hemp’s THC content was less than 1 percent, Salt Creek was given the choice to destroy the harvest or keep it for use solely on their property.
Although the hemp seeds, which are high in protein and omega-3 fatty acids, would make highly-nutritious feed for livestock, selling the seeds for that use would be illegal — not only because of their THC content, but also because hemp products cannot be legally incorporated into commercial feed used for livestock. Fortunately for hemp growers, Colorado’s legislature unanimously passed Senate Bill 109 this month, which will create a group to study the inclusion of hemp products in animal feed. This study is not intended to be a scientific research study, but rather a review of the broad legal, safety and economic considerations of adding industrial hemp to commercial feed. If the study is successful, hemp could be sold as livestock feed in the future.
The future of seeds and regulation
MacKenzie said she understands that the CDA must enforce the state’s rules, which is why she joined — and was elected to the board of directors of — the Hemp Industry Association’s Colorado Chapter. Her hope is that advocacy by this member-driven organization will lead to more sensible hemp policies and improved cooperation throughout the industry.
Reflecting on the regulations about seed and THC levels, MacKenzie said, “There is some irony, in that you are held to these standards of staying within 0.3 percent, but you’re not allowed to import seed and there is no certified seed. You must grow at or below that THC level, but you don’t know what your seed is going to do. It’s a big challenge.”
“European countries have allowed hemp (to be grown and sold) for a lot longer than here. They have developed the genetics, and have certified seed programs,” she added.
Colorado State University doctoral student Brian Campbell and Researcher Abdel Berrada have been studying hemp varieties, grown from seeds imported from Europe and Asia. The studies have multiple purposes, including determining the plant’s water and nutrient requirements, susceptibility to pests, and the effects of different genetic structures on THC levels.
“There is plenty of variability in most traits for cannabis, and this extends to cannabinoid levels. The vast majority of European and Eastern European cultivars that we have (tested) have been consistently below the 0.3 percent THC threshold,” Campbell said. “These have been mostly dual purpose (that is, seed/fiber) varieties. The only cultivars that have (problematically high THC levels) have been long-season fiber varieties from different latitudes. Very few Colorado farmers are using certified, imported seed, though, so a lot of the seed available in the state is much more variable than the (European) cultivars.”
Private suppliers in Colorado are also attempting to produce low-THC seeds — true hemp varieties, according to the legal definition — to enter into the CDA’s Approved Certified Seed Program. When stable, uniform, distinct varieties meet the program’s criteria, the CDA will approve and issue tags for individual seed packages. Hemp growers who buy the seed will be subject to limited testing, planting bag tags and verification of purchase orders along with visual inspections of their crop. The seed can only be used for one year, due to intellectual property and bag tag language to protect plant breeders’ rights. If the seed is saved, it will not qualify as CDA Approved Certified Seed.
Seed Certification Specialist Terry Moran stated that a lot of people claim their seeds are certified, which is mis-branding under the Seed Act and a violation of state and federal seed law.
Meanwhile, Salt Creek has decided to grow from cloned plants. “Our opinion is that it is the most reliable option for genetics this year,” MacKenzie said.
In addition to challenges presented by seed sourcing and THC levels, the hemp industry faces a long list of uncertainties and economic discrimination. Colorado growers’ worries about hemp fields being raided and confiscated by federal agents was reduced earlier this month during a U.S. House of Representatives Judiciary Committee hearing, when U.S. Drug Enforcement Administration Chief Chuck Rosenberg said his agency is not looking to harass hemp farmers and processors as long as they abide by section 7606 of the farm bill.
Section 7606, concerning the Legitimacy of Industrial Hemp Research, was part of the 2013 Farm Bill that became federal law in February 2014. The act defines industrial hemp as distinct from marijuana, and authorizes institutions of higher education or state departments of agriculture in states that have legalized hemp cultivation to regulate and conduct research and pilot programs.
Perhaps the DEA chief’s statement will also have the effect of reducing other obstacles to profitable hemp production, which range from the inability to procure funding from USDA programs that provide crop insurance and farm loans to the reluctance of many banks to offer their services. Moreover, shipping hemp outside the state (and therefore beyond the jurisdiction of the CDA) puts the product under the jurisdiction of federal officials and other states, and may also be a risky business.
Ensuring that hemp-product processors are legitimate, and follow through on their financial obligations to growers, is another area of concern. The CDA is trying to help: Earlier this week, the agency held a meeting to inform growers about its Farm Product Dealer Program, and how hemp producers can use it to protect themselves.
“Currently, a business that deals in any agricultural product is required to be licensed with the CDA and hold a bond or letter of credit. These businesses take possession/title to a producer’s product in exchange for payment. The exchanges can be cash deals, or can involve a future payment through a contract,” said CDA spokeswoman Christi Lightcap. “This CDA program provides important financial protection to the producers who entrust their product to a dealer. In the event that the producer does not receive payment from the dealer, the CDA can file a claim on the bond on their behalf so the producer can receive payment.”
And then there is the issue of water, which cannot be used for growing hemp if it comes from a federally managed water storage project, such as Ridgway Reservoir or Blue Mesa Reservoir (both of which are projects of the U.S. Bureau of Reclamation).
According to Steve Anderson, the manager of the Uncompahgre Valley Water Users Association, the Bureau of Reclamation had said a year ago that they would ignore hemp growers unless they brought attention to themselves through the media or otherwise. Then, this year, Anderson was informed that his staff should report to the bureau when they observe a hemp operation using the association’s water, because this is illegal.
According to Mike Berry, general manager of Tri-County Water, which operates the Ridgway Reservoir, the bureau told him it is illegal for Tri-County to provide augmentation water from its municipal industrial pool in Ridgway to a junior depletion (diversion from the river) for growing crops deemed illegal by the federal government. However, water that is treated, distributed and metered by Tri-County’s domestic water system may be used for growing hemp like any other crop that is legal in Colorado.
When it comes to senior water rights owners, Delta water law attorney Aaron Clay of Clay & Dodson PC said that while federal storage projects can restrict water use, the federal government has no control over state water rights. The state’s water engineer, who does have regulatory power, would uphold legal uses, including uses for hemp production, in Colorado.
To assure both junior and senior water rights for hemp growers, Senate Bill 17-117 was introduced by State Rep. Marc Catlin and State Sen. Don Coram, both of Montrose, and State Rep. Donald Valdez, of La Jara. If it passes, the bill would confirm that a person with an absolute or conditional water right decreed for agricultural use is entitled to use the water for the cultivation of industrial hemp, provided that this individual is registered by the CDA.