ALFALFA — Michael Hughes could grow pot in his Bend backyard if he wanted to.
As long as they were out of view, he could grow the plants, cut and dry the flowers, smoke them and get high. But he can’t grow hemp there. He bought a license to grow hemp, but a variety of factors has made it more difficult to grow hemp than marijuana and other crops in Oregon.
Hemp, a cannabis plant with virtually no psychoactive ingredients that traditionally was grown for its strong fibers and edible seeds and oils, has been legal in Oregon for six years.
The Legislature authorized it in 2009 despite it being considered illegal federally. The law tasked the Oregon Department of Agriculture with writing rules and licensing growers.
After taking five years to finish the rules, the agency geared up this year for what turned out to be a painful growing season in which just nine licensed hemp farmers got a crop in the ground. Those who did navigated months of uncertainty and pushback in a state that last November voted to legalize recreational marijuana for adults 21 and older.
Hesitation by the Department of Agriculture to embrace new uses of hemp has combined with the now-outdated state law and federal framework to cripple Oregon’s hemp market despite interest in creating a nation-leading industry, according to interviews with farmers, businesses, lawmakers and the agencies overseeing hemp here and in other states.
State regulators recoiled after Oregon’s farmers emerged with plans to grow the plants for an extract — cannabidiol, or CBD — that many believe can treat and cure cancer and other ailments, but which remains unregulated by the FDA because hemp remains tied to its psychoactive cousin, marijuana.
While an array of Oregon residents have told the state they want to grow and process hemp, bureaucrats and state lawmakers are at a crossroads heading into the next growing season: they could let hemp farmers and businesses shape the industry, or they could put in place restrictions similar to those followed by recreational and medical marijuana growers.
After a season in which few acres have been grown in Oregon while thousands were grown in other states, including for CBD, Hughes remains skeptical that Oregon will get it right.
“What they’re going to do is screw around long enough that they’re going to disadvantage their farmers,” says Hughes, an attorney who raised and studied hemp in the Midwest before he moved to Central Oregon and grew hemp in the state’s first legal hemp harvest in decades.
The Oregon Department of Agriculture has made clear that when it gave out 13 hemp licenses this year (two of which were later returned) it thought farmers would grow for rope and seeds.
But that’s not how money is made in the American hemp industry.
Hughes stood in his field on a late-August day, watching birds land near his hemp plants, peck at the ground in search of seeds and fly away with empty stomachs. There are no seeds to be found on this farm.
“I kind of feel bad for the birds,” Hughes says.
Hughes, like all other hemp farmers in Oregon, wasn’t primarily interested in growing male plants that produce seeds.
Instead, farmers planted their crops in spacious rows, at times in greenhouses, in a horticultural style similar to marijuana growing that encourages female plants to grow dense flowers.
Unlike the flowers on marijuana plants, which have anywhere from 0.4 percent to around 30 percent THC, the psychoactive, high-inducing compound in cannabis, hemp by law may contain no more than 0.3 percent THC.
Farmers this year grew cannabis strains low in THC and high in cannabidiol, a naturally occurring compound in cannabis that can be highly profitable and can already be purchased in Oregon marijuana dispensaries as an edible supplement.
The substance, which is extracted from cannabis plants and refined, is sought after at times as a last resort for people suffering from cancer, seizures and other ailments. It has grown in popularity in recent years because of the spreading belief — including by at least one Oregon hemp grower — that it may cure cancer in some patients.
The 2009 hemp law allowed the plant to be grown on at least 2.5 acres of land, and it didn’t limit what was produced. Yet for months, agency officials told growers they believed the law didn’t intend to let farmers grow for CBD, which isn’t regulated by the FDA or other federal agencies because hemp is still illegal federally.
The agency says that during the five-year rule-making process, it was never alerted to the desire to grow hemp for CBD.
“I don’t think anybody knew about CBD production” during the rulemaking process, said Lindsay Eng, the Department of Agriculture employee overseeing hemp regulation. “It wasn’t anything that the Legislature probably had thought about.”
Sen. Floyd Prozanski, who co-authored the 2009 bill, told The Bulletin he didn’t have CBD production in mind when the bill was making its way through the Legislature.
Records show the Department of Agriculture should have known about the desire for hemp-based CBD months before it finished writing its hemp rules. Numerous people told the agency they wanted to produce CBD-based veterinary medicine, edible supplements and other products.
One man told the agency he wanted to produce honey sticks high in CBD from hemp in a December 2014 email forwarded to ODA Assistant Director Lauren Henderson.
In October 2014, Ron Pence, a main agency employee working on the hemp rules, asked Duane Sinning, a counterpart in the Colorado Department of Agriculture, whether Colorado limited what varieties hemp growers there could produce. It doesn’t.
In his response, Sinning noted his agency has adaptable THC testing rules that account for the variety of products Colorado growers produce from hemp, including biofuels and CBD.
— Renee Moulun, assistant attorney at the Oregon Department of Justice
Numerous prospective hemp growers have since said they didn’t pursue a license in 2015 because of the onerous regulatory framework.
After months telling growers and prospective growers the law intended for things like seed and fiber production, the agency was told in September its interpretation of the law was wrong.
“The legislature did not limit what products may be produced from industrial hemp; growing industrial hemp for the production of CBDs is not contrary to the text of the statute,” wrote Renee Moulun, assistant attorney in charge at the Oregon Department of Justice natural resources section, in a Sept. 23 memo to Coba.
Moulun’s opinion that CBD production — along with any other product from hemp — is legal is monumental for current and future hemp growers looking to make money from the crop.
If Cliff Thomason can get enough plants in the ground next year, he estimates he can generate about $4.2 million on about 4,200 hemp plants. That’s based on what he calls a conservative estimate, with each plant producing a pound of flower during the growing season, generating around $1,000 each in CBD content.
The Department of Agriculture also incorrectly believed the law required growers to plant thick fields of hemp, growing dense plots for traditional textiles like fiber.
The agency went as far as writing a violation in August for Hughes, alleging his farm, with some rows of hemp spaced several feet apart, didn’t meet field density requirements that Moulun in her memo later said don’t exist.
Eng said the violation — along with two more dated Aug. 21 intended for two other growers — was never sent, and Hughes said he never received one.
The Moulun memo did uphold a Department of Agriculture interpretation of the 2009 law: prohibiting tactics growers used to prolong the growing season. And that could impact the ability of farmers east of the Cascades to grow hemp.
Hughes, like others, started his plants in a greenhouse. The process allowed some of his cannabis plants to grow massive, their stalks as thick as his wrist. He transplanted others into the high-mountain soil on his 2.5-acre farm in Alfalfa, about 20 miles east of Bend.
“I want to be an innovator,” Hughes says. “If I wanted to follow farming I’d have stayed back in Nebraska planting Roundup Ready soybeans in the ground and spraying them” with pesticides.
Agriculture officials throughout the 2015 growing season told growers they didn’t believe the 2009 law allowed for greenhouse production, though they never took the step to revoke licenses, as allowed by the law for growers who are out of compliance.
Because lawmakers in 2009 didn’t expressly write the word greenhouses or anything related to indoor growing into the statute, the DOJ’s Moulun used what a court might if a hemp grower challenged the prohibition of greenhouse growing: a dictionary.
Moulun opined that because lawmakers required a contiguous 2.5-acre field, and because the Webster’s dictionary definition for “field” doesn’t include greenhouses, the 2009 statute doesn’t allow greenhouse production.
Similarly, because the law doesn’t mention growing techniques used in the marijuana industry like cloning plants so all crops are genetically identical, anything but direct seeding into the ground is a prohibited hemp farming practice.
The Department of Agriculture has since told The Bulletin it will use the information from Moulun to move forward next year, and that it doesn’t plan to revoke licenses for growers who prolonged the 2015 growing season by starting indoors.
The interpretation means farmers east of the Cascades face an unfriendly hemp growing climate that wiped out Hughes’ outdoor crops during a late-August cold front.
“What are we talking about here? It’s not like our greenhouse is hidden up in the mountains. None of it makes sense,” Hughes said. “I see more of an effort to look for things to complain about as opposed to look for things to be positive about.”
While agency regulators experienced growing pains early on, hemp took a back seat to marijuana during the legislative session.
While lawmakers were primarily focused on adding protections and regulations to Oregon’s marijuana laws before it became legal for adults 21 years and up to consume in July, a potential conflict between hemp and marijuana emerged.
Hemp vs. marijuana
Hemp and marijuana are the same species, Cannabis sativa. But marijuana is cultivated to dramatically increase THC, a psychoactive chemical that exists only in trace amounts in hemp. (“Marijuana” refers to the flowering tops and leaves of cannabis varieties with high THC levels.)
The history of hemp
Hemp has historically been used for rope but has hundreds of other uses: clothing and mulch from the fiber; foods such as hemp milk and cooking oil from the seeds; and creams, soap and lotions. Even George Washington and Thomas Jefferson grew hemp, and Betsy Ross’ American flag was made of it (supposedly, at least). But centuries later, the plant was swept up in anti-drug efforts, and growing it without a federal permit was banned by the 1970 Controlled Substances Act.
The industry of hemp
The United States is one of the fastest-growing hemp markets. In 2011, the U.S. imported $11.5 million worth of legal hemp products, way up from $1.4 million in 2000. Most of that growth was seen in hemp seed and hemp oil, which finds its way into granola bars and other products. The plant’s path to legitimacy in the U.S. could clear the way for American farmers to compete in an industry dominated by China and Canada. But U.S. law still says it’s illegal.
Source: Bulletin research and archives
Outdoor marijuana growers, primarily from Southern Oregon’s cannabis-friendly growing climate, were concerned about the prospect of vast fields of hemp that could include male plants capable of pollinating marijuana being grown for high THC, with potentially ruinous effects.
Likewise, if marijuana plants pollinate hemp plants, hemp THC content could rise above the legal 0.3 percent THC threshold.
While Oregon’s early hemp growers were primarily interested in producing females with flowers for CBD, the fears from the state’s large outdoor growing industry attracted lawmakers’ attention.
Rep. Peter Buckley, an Ashland Democrat who co-chairs the budget-writing Ways and Means committee and sits on the committee that focuses on pot issues, proposed a bill that would have frozen the hemp program through March 2017 to quell cross-pollination fears. House Bill 2668 also would have required 5-mile buffer zones between outdoor marijuana and hemp grows.
Buckley’s bill took various forms before failing on the Senate floor on the closing day of session in July. Senate Majority Leader Ginny Burdick told The Bulletin she voted against the bill because “it was seen as an effort to really give favoritism to marijuana over hemp.”
Despite the failed legislation, the Department of Agriculture moved in August to put a moratorium on new hemp licenses, likely until lawmakers have another chance to address hemp in the short session that begins in February.
Internal agency emails show more growers were interested in obtaining hemp licenses but withdrew their applications amid pushback from the agency over CBD production and because of uncertainty over whether their licenses would be revoked. At least one other had applied before the moratorium was announced and didn’t receive a license.
The agency said the moratorium would have little impact on the hemp industry as its decision was announced late in the growing season and newly licensed farmers likely wouldn’t get plants in the ground until next spring. Farmers say they need to be planning for the next growing season, and the open questions impact planning.
— Sen. Ron Wyden
Oregon has faltered despite strong support in Congress from its Democratic delegates, who this summer weighed in on the hemp program’s issues.
Oregon’s congressional delegates were at the forefront when Congress included language in the 2014 Farm Bill language that paved the way for a legal hemp framework in states with laws friendly to cannabis.
The delegates are now critical that Oregon has missed the mark, and in August the state’s five congressional Democrats wrote a letter to the Department of Agriculture and Oregon State University warning that unless the state changes course, “Oregon farmers could lose out on the chance to make Oregon a leader in the hemp industry.”
Sen. Ron Wyden later said he has no interest in limiting what hemp growers produce.
“If you’re pro-farmer, pro-business, pro-environment, pro-common sense, you give farmers more freedom,” Wyden said. “This is not pot. This does not contain active ingredients. We don’t get high from hemp. So I think we’re going to pick up more support.”
Oregon delegates have proposed a new bill that has support in Congress and would effectively remove hemp from the Controlled Substances Act, where it is associated with marijuana as a drug on the same level as heroin and ecstasy unless states receive a permit from the Drug Enforcement Administration, which Oregon hasn’t yet tried to obtain.
In a draft response in late August — which agency officials and Wyden’s office say was never sent — Oregon Department of Agriculture Director Katy Coba maintained that Oregon hemp farmers weren’t following the law’s intent.
“It has become apparent that a majority of the 11 licensed growers are not growing hemp for the purposes originally intended with the establishment of Oregon’s industrial hemp regulatory program,” Coba wrote in the draft letter before the Moulun memo was released. “By that we mean the growing of hemp in Oregon for industrial purposes such as fiber and seed. Instead, these growers are growing hemp to extract valuable cannabinoids for medicinal purposes.”
The agency says its commercial hemp industry will be bigger next year.
“We want hemp to survive and thrive as much as anything,” Eng said. “We just want to make sure we’re doing it right and that it’s able to be flexible.”
Lawmakers are now considering focusing on hemp during the 35-day legislative session that starts in February.
Sen. Prozanski said any product intended for human consumption should undergo the same testing as medical marijuana grows “for health and safety reasons.”
“I would assume that if a person is growing industrial hemp as defined and the purpose is medical grows, I think they’re going to have to be very, very similar rules as to the quantity as to the grows that are under the (Oregon Medical Marijuana Program),” Prozanski said.
Under laws passed during the 2015 session, new medical marijuana growers are limited to 48 plants. Their products must undergo tests for pesticides, mold and mildew before reaching the dispensary.
Hughes, meanwhile, says if the state continues to resist the crop, he’ll consider moving to another state that has been more encouraging for hemp farmers, like Colorado.
“I’m not going to sit around here and piss away a bunch of money in Oregon if the ODA is going to continue to be stupid about it,” he said. “I’ve been in contact with many different departments of agriculture who are just flabbergasted why Oregon of all places would continue to resist this.”
— Reporter: 406-589-4347,