In 1937, the Marihuana Tax Act imposed taxes on the sale of Cannabis sativa L. (cannabis), discouraging its production due to the failure of the Act to differentiate between hemp and cannabis (United States Department of Agriculture Economic Research Service 2000). Botanically, both hemp and cannabis are derived from the same plant: Cannabis sativa L. Attitudes toward cannabis were further tainted when it was classified as a Schedule I drug in 1970 under the Controlled Substances Act, which effectively made its production illegal (Johnson 2018; Malone and Gomez 2019). This remained in place until 2014, with the passage of the Farm Bill, when a distinction between hemp and cannabis was established for US producers through the “Legitimacy of Hemp Research” pilot program (Pal and Lucia 2019).

The United States Department of Agriculture (USDA) formally distinguishes the two plants based on THC (Δ9-tetrahydrocannabinol) content, which is the primary psychoactive component of the Cannabis sativa L. plant (U.S Drug Enforcement Administration 2020). A plant is considered hemp if the THC content is less than 0.3% on a dry weight basis and is considered cannabis if the THC content exceeds the 0.3% threshold (Johnson 2019). Utilizing this definition, state-level legislation was passed to develop pilot programs for hemp production in 2014 (Agricultural Act 2014). The pilot program opened up the opportunity for farmers to grow hemp for the grain, floral, and fiber markets. Four years later, the 2018 Farm Bill removed hemp’s Schedule I drug classification, re-legalizing its production in the USA after a more than 45-year ban (Johnson 2019). However, the reintroduction of the crop into the agricultural sector has been complex and remains confounded by its association with cannabis (Campbell et al. 2021).

The reintroduction of hemp to the US agricultural landscape with the passing of the 2014 Farm Bill was a momentous development. While the pilot program offered each state the autonomy to create individualized hemp production plans, this proved to have its downfalls. While this allowed for individual adjustments to the hemp production plans to fit their needs, it created an opportunity for each state to maximize its competitiveness within the burgeoning industry, which may have actually impeded industry development and growth (Mark et al. 2020). For instance, states implemented different THC testing protocols, licensing fees, sampling procedures, and data collection. This resulted in a patchwork of hemp legislation across the country that was inconsistent in its terminology and processes, threatening the viability of this new sector and creating many challenges for both producers and hemp businesses in marketing products across state lines (Mark et al. 2020).

The 2018 Farm Bill made significant changes to the existing regulatory framework the 2014 pilot plan set forth, further complicating the existing disparities across state plans. First, it broadened the scope to include tribal governments, whereas previous regulations had only allowed states to develop independent plans (Agricultural Act 2018). Additionally, it created the interim final rule and final rule for hemp production, resulting in the USDA Hemp Producer License under which states and tribal governments could choose to operate. Enacted on March 22, 2021, the final rule for hemp production partially clarified the regulation requirements for US state and tribal governments by providing regulatory guidance from a Federal level (U.S. Department of Agriculture Agricultural Marketing Service 2021). Regulatory guidance provided by the final rule included direction on performance testing standards, sampling standards, harvest window, sampling agent requirements, and testing labs. To adhere to this guidance, state and tribal governments have been allowed to submit initial or revised individualized plans that incorporate the USDA Hemp Producer License regulations and include any clauses specific to their needs. While this allows for individual amendments, it has also perpetuated the ongoing lack of consistency between plans.

While the 2018 Farm Bill sought to clarify the program framework and address inconsistencies resulting from the rulemaking process for newly legalized hemp, this has been complicated by the 2014 Farm Bill still being active related to hemp provision. With two Farm Bills being active simultaneously, an unlevel playing field is created as sampling, testing procedures, harvest windows, and testing frequency vary by state (Mark et al. 2020). In addition, the original sunset date of October 31, 2020, for the 2014 Farm Bill language for hemp has been extended twice, first to September 30, 2021, and then to January 1, 2022 (Fig. 1). State governments that passed hemp legislation prior to the 2018 Farm Bill have continued to regulate hemp production under the 2014 Farm Bill, while those who passed legislation in 2018 and later regulated according to the 2018 Farm Bill. As a result, this infant industry is now trying to overcome regulatory hurdles from two different Farm Bills that are not consistent.

Hemp policy timeline. Adapted from: US Department of Agriculture Agricultural Marketing Service, 2021. This timeline includes important dates of policy changes and adaptations since the reintroduction of hemp production in the 2014 Farm Bill through pilot plans. The 2018 Farm Bill made significant changes to the existing regulatory framework of the 2014 pilot plan by broadening the scope to include tribal governments, whereas previous regulations had only allowed states to develop independent plans. The 2018 Farm Bill also created the interim final rule and final rule for hemp production, resulting in the USDA Hemp Producer License under which states and tribal governments could choose to operate. The final rule for hemp production partially clarified the regulation requirements for US state and tribal governments by providing a regulatory baseline that must be adhered to. The sunset date is the date when language from the 2014 Farm Bill pilot programs was set to expire and was no longer considered valid, requiring that producers either adopt the USDA hemp producer license or submit an independent production plan for review. The original sunset date of October 31, 2020, for the expiration of the 2014 Farm Bill language was extended twice, first to September 30, 2021, and then to January 1, 2022

It is important to note that these state and tribal hemp production plans only address the process of growing hemp up through pre-harvest THC compliance testing. After harvest (from the farm gate to retail product), regulations for hemp are also state and tribal government dependent but are not addressed by any of these plans. There are no federal-level retail regulations or industry standards that regulate the final hemp-based products in terms of consistency, quality, or analysis of claimed attributes of a hemp product in the retail sector. However, the US Food and Drug Administration (FDA) has launched a Data Acceleration Plan to learn more about the safety of cannabis-derived products, indicating that regulations for this sector are in progress (US Food and Drug Administration 2021).

Since the plans analyzed in this study only address hemp production up to harvest, inconsistencies between regulations have varying effects on the development of the industry, which may be compounded throughout the supply chain. For example, in the period between official testing and harvest, the plant continues to mature. As the plant matures, the THC level continues to increase and can result in a hemp plant that pushes its THC content over the allowable threshold (Pearce et al. 2021). This results in a producer having received a legal certificate of analysis from the appropriate authorities to harvest what was hemp at the time of testing but is legally marijuana at the time of harvest. Suppose testing is done post-harvest by a processing facility or is tested entering another state. In that case, serious issues can arise and result in the confiscation of the crop because of its illegal THC content (Pearce et al. 2021). As highlighted by this example, the lack of consistency between current regulations and the absence of successive regulations can impact the intra- and interstate flow of hemp and THC performance testing requirements, licensing fees, capital investment, and many other aspects of the industry.

Given the current lack of consensus regarding hemp production legislation, the objective of this study is twofold. First, the research team performed a content analysis to examine the consistency of terms between state and tribal hemp plans. Second, the study’s findings are used to provide recommendations to US governing bodies on how to improve clarity for hemp producers, thus mitigating regulatory confusion impeding the industry’s success. The format for the remainder of this manuscript is a review of methods for the content analysis, results, and discussion and conclusions.