Hemp in California: Amid legal confusion, many counties saying no to hemp – for now

(Editor’s note: This is the first in an occasional series on the complex hemp market in California. Today, a look at why many counties in the cannabis-friendly state are saying no to hemp, and how some hemp companies are finding opportunity despite the challenges.)

The nation’s largest agricultural state continues to perplex would-be hemp farmers and businesses as nearly half of California’s 58 counties maintain moratoriums on hemp production and others block licenses.

That’s despite California’s agriculture department giving growers the long-awaited go-ahead in April to get licensed for hemp production.

One longtime California hemp activist called the state’s hemp program “a bureaucratic nightmare.”

“I blame the state for complete incompetence and dropping the ball and destroying millions of dollars in business, because a lot of people basically stopped their farm projects,” Chris Boucher, who owns Farmtiva, an agricultural services and consulting company based in San Diego, told Hemp Industry Daily.

California doesn’t have many requirements for farmers to obtain a hemp license. The state requires:

  • A $900 fee.
  • The location of each farm.
  • The name of an approved hempseed variety or cultivar a farmer plans to grow.

But many continue to be shut out of the California hemp market.

Of 56 counties reporting, 25 currently hold moratoriums on hemp production, according to Tehama County Agriculture Commissioner Rick Gurrola.

Gurrola pointed Hemp Industry Daily to two reasons his regulators – and those of several other counties that currently block hemp production – are hesitant to allow it: a lack of federal hemp guidelines and vague definitions in state law.

“We do not have a state or federal regulatory package in place,” he said. “We only have one (state hemp) regulation that allows for registration only. None of the other regulations are adopted or approved.”

Further, Gurrola said, California’s counties aren’t sure what to make of a “very vague” definition of something the state calls an “established agricultural research institution.”

“There are operations throughout the state that are not growing industrial hemp strictly for research purposes, and the way the law is currently written, it allows for that vagueness,” he said.

Gurrola, who serves on the California Department of Food and Agriculture’s Hemp Advisory Board, said the state’s current hemp rules wouldn’t pass muster by the U.S. Department of Agriculture (USDA). That’s because the USDA has been directed to require states to do things such as testing hemp for THC content, something California doesn’t regulate.

The advisory board hasn’t met in months – and probably won’t meet again until the USDA sets hemp rules for the 2020 season, Gurrola said.

Cannabis concerns

If many California counties are confused about state and federal hemp rules, others are holding off because of the concerns of longtime marijuana growers.

Humboldt and Sonoma counties, for example, have blocked hemp production to protect marijuana from potential cross pollination.

(Marijuana and hemp are the same plant, cannabis sativa, though marijuana varieties are grown for high-THC flower from female plants, which don’t produce as much THC when exposed to pollen from male cannabis plants. California law excludes low-THC varieties from its definition of “cannabis,” meaning hemp does not enjoy the same legal protections in the state as marijuana.)

Humboldt County changed course just this week, when it started accepting hemp applications after a 45-day moratorium expired. Soon after, county officials approved another 45-day moratorium.

In Sonoma County, authorities set a one-year moratorium on industrial hemp production because cultivation of the crop poses a risk to the current legal cannabis crop, according to a report by the county’s agriculture department.

The Sonoma County moratorium puts hemp production on hold until controls are in place to ensure marijuana and hemp can coexist.

Gurrola said Sonoma County may allow for indoor production of hemp, or limit cultivation to specific, feminized seed varieties for CBD production.

“They’ve carved out a provision for their local college to do some type of limited research as long as it’s done indoors,” he said.

Going to court?

Some hemp activists in California say that counties are flouting state law by not accepting hemp applications.

San Francisco attorney Patrick Goggin of Hoban Law Group told Hemp Industry Daily that counties blocking hemp without a moratorium on the books could face a legal challenge.

“If that hasn’t happened, they need to be legally held accountable,” said Goggin, who wasn’t aware of any lawsuits that have been filed.

Counties that currently block hemp license registrations without a moratorium include:

  • Orange
  • Riverside
  • San Bernardino
  • Los Angeles (though L.A. County expects to start accepting applications soon, according to the Orange County Register)

Season underway

In counties where hemp production isn’t blocked, California hemp farmers are getting started with their 2019 season.

Josh Schneider

Josh Schneider, director of young plant production for San Diego-based hemp producer Zenleaf Labs, told Hemp Industry Daily he is seeing great interest from growers throughout California.

“I spend a lot of my time helping farmers navigate the newly opened registration process,” Schneider said, adding “many farmers are confused or ignorant of how to get through the process and often frustrated.”

Schneider advises farmers to reach out to county officials to explain why they want to grow hemp.

“Developing a good relationship with the county ag commissioner’s office and working together … will help the farmers and regulators arrive at a better regulatory structure,” Schneider said.

Boucher agreed that would-be hemp growers should contact their county commissioners; his home county, he said, has been receptive.

But California’s patchwork of agriculture policy is slowing the state’s hemp industry, he added.

“Some of these ag commissioners, they’re anti-hemp; they react as though it’s radioactive and they don’t know what to do with it and it’s just a big hassle,” he said. “They’re not ready for it. They’re not prepared.”

Laura Drotleff can be reached at [email protected]

6 comments on “Hemp in California: Amid legal confusion, many counties saying no to hemp – for now
  1. Ray on

    @ Laura Drotleff, thank you for being so involved in this industry.

    “Some of these ag commissioners, they’re anti-hemp; they react as though it’s radioactive and they don’t know what to do with it and it’s just a big hassle,”

    Hemp should never have been considered a controlled substance but now it’s just getting really stupid and obvious. God bless the America farmer.

    What did America do to deserve this?

    “To answer Ray’s question, we have been sold out out. It is easy to spot those selling us out, if they speak anti cannabis, there they are!” R.J.

  2. George Bianchini on

    ”Gurrola, who serves on the California Department of Food and Agriculture’s Hemp Advisory Board, said the state’s current hemp rules wouldn’t pass muster by the U.S. Department of Agriculture (USDA). That’s because the USDA has been directed to require states to do things such as testing hemp for THC content, something California doesn’t regulate.”

    Unless this is a misprint. Gurrola, known as the only anti hemp person on the Hemp Board, voted against the testing protocols. The vote was 10 to 1. We do have testing requirement. As a matter of fact the board adopted the Federal requirement of testing THC post decarboxalating.
    I assume Mr. Gurrola is unaware of Prop 64’s testing requirements or of AB 1409’s testing requirements.
    California’s hemp cultivation is lawfully active. Ag Commissioner’s that stand in the way of this fully legal farming commodity should be fired, and sued personally. I have personally sued the San Joaquin Ag Commissioner for his illegal attempt to stop hemp farming. We are in federal court in Sacramento as we speak. San Joaquin County and many others are using the same (California League of Cities) cut and paste Urgency Ordinance to claim Hemp farming will lead to terrible things including the health, welfare and saftey of it’s residence. They have declared Hemp a nuisance thereby placing a moratorium (ban) in place. This is an illegal maneuver and not in compliance with due process or Ca Code 65858.

    A county does not have the policing power to override a State and/or Federal Law, and is a clear violation of the Supremacy Claus.. A clause in Article VI of the U.S. Constitution that declares federal laws to have jurisdictional authority over state laws in the event there is conflict between laws established by two governing bodies.

    Our Counties cannot claim a legal act properly executed to be a nuisance. Same goes with California’s Right to Farm act.

    § 3482.5. Agricultural activity not a nuisance; exceptions;
    construction with other laws
    (a) (1) No agricultural activity, operation, or facility, or appurtenances
    thereof, conducted or maintained for commercial purposes, and in a
    manner consistent with proper and accepted customs and standards,
    as established and followed by similar agricultural operations in the
    same locality, shall be or become a nuisance, private or public, due to
    any changed condition in or about the locality, after it has been in
    operation for more than three years if it was not a nuisance at the
    time it began.

    The problem is nobody is willing to argue this in court, well except for me. Batter up.
    We are no longer anybodies “low hanging fruit”.

    • DT on

      You didn’t see the part that said if it is not a nuisance at the time it began. I am not anti hemp but it does have an environmental impact on nearby residential property. If you haven’t heard the complaints that are being voiced then you are uninformed or completely biased. If you take the approach that tries to force this plant to be farmed anywhere regardless of its impact, then be prepared for a backlash from the majority of the population which will result in laws being changed. The backlash is not coming from government. It is coming from the citizens. The government is going to ultimately do what the voters want it to. You should get out in front of this problem if you want to save the hemp industry. Every law you cite can and will be changed.

    • Rob Roy on

      George, please give me a call. My name is Rob Roy and I am the President and General Counsel of the Ventura County Agricultural Association. I have been the attorney for the Association for over 42 years! We have some members who are hemp farmers who are going to be in the cross- hairs of a potential County-wide moratorium on hemp in Ventura County. Would love to see your lawsuit and get an update. I agree that Civil Code section 3482.5(a)(1) will prevent local governments from adopting these moratoriums based upon a public nuisance theory. We also have a local right-to-farm ordinance based upon the State ordinance that would protect these farmers from such regulation. The problem is no one has yet to challenge them in Court!My telephone is 805-388-2727. E-mail: [email protected]

  3. Chris C. on

    The problem with hemp fields in our small ag community of Moorpark, in Ventura County isn’t understanding the regulations. It’s the public nuisance that’s created by the smell. Compared to other crops such as beans, lettuce or strawberries, hemp is a stink bomb. If the fields were completely away from housing and businesses, it wouldn’t be an issue. However they are raising their crop right next door to developed housing tracts and well-traveled freeways. The overpowering and offensive scent has many residents closing windows, running air conditioners and complaining to the city and county. As a commuter, I’ve gotten into the habit of rolling the windows up and closing the vents when I have to drive by this particular farm.

    I believe most people could care less about hemp farms in California and in their counties. However no one wants one literally over their back fence.

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