Federal legalization of hemp in the United States and its effect on US immigration laws

On December 20, 2018, the United States President signed the Agriculture Improvement Act of 2018 (2018 Farm Bill) into law. One of the more significant changes contained in the 2018 Farm Bill was the removal of hemp and extracts of hemp from the Controlled Substances Act (CSA). A brief summary of this change, and its effect on US immigration laws, is provided below.

Summary of key hemp-related provisions

Prior to the 2018 Farm Bill, hemp, except for its seeds and stalks, was classified as a Schedule 1 controlled substance, along with cannabis. Schedule 1 controlled substances are drugs with no currently accepted medical use. 

As a result of the 2018 Farm Bill, hemp is no longer considered a controlled substance, at least under certain circumstances. The 2018 Farm Bill amended The Agricultural Marketing Act of 1946 (Agricultural Marketing Act) to specifically define hemp as cannabis (including any part of the plant) with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis.[1] THC continues to be listed as a Schedule 1 controlled substance but it now excludes THC contained in hemp, as defined in the Agricultural Marketing Act.[2]

The 2018 Farm Bill adds Subtitle G to the Agricultural Marketing Act, which gives shared regulatory authority over hemp cultivation and production to the United States Department of Agriculture (USDA) and the relevant State or Indian tribe.[3] A State or Indian tribe that wishes to have primary regulatory authority over the production of hemp in its jurisdiction must consult with the state’s governor and chief law enforcement officer to devise a plan that must then be submitted to the Secretary of the USDA for approval. If a State or Indian tribe chooses not to develop its own hemp regulatory program, the USDA will establish a federal program on its own, in order to regulate hemp cultivators in those jurisdictions. 

The 2018 Farm Bill makes clear that no State or Indian tribe may prohibit the transportation or shipment of hemp or hemp products, which are produced in accordance with Subtitle G of the Agricultural Marketing Act, through the State or the territory of the Indian tribe.[4] Therefore, hemp and hemp products may now be transported across state lines, as long as they are produced in accordance with the regulatory plan established by the relevant State/Indian tribe and the USDA. 

Hemp legalization and cannabidiol (CBD)

It is a common misconception that the 2018 Farm Bill fully legalized CBD and CBD-related products at the federal level. However, this is not entirely accurate. 

As a result of the 2018 Farm Bill, hemp (which contains no more than 0.3 percent of THC) is no longer considered a Schedule 1 controlled substance under the CSA. Therefore, CBD extracted from hemp is not considered a Schedule 1 controlled substance. However, CBD may also be extracted from cannabis containing more than 0.3 percent of THC, which is a Schedule 1 controlled substance. Any CBD extracted from cannabis is still considered a Schedule 1 controlled substance. 

On December 20, 2018 (the same day that the 2018 Farm Bill was signed into law), the US Food and Drug Administration (FDA) also issued a statement regarding the regulation of products containing cannabis and cannabis-derived compounds. In its statement, the FDA reaffirmed that Congress explicitly preserved its current authority to regulate products containing cannabis or cannabis-derived compounds under the Federal Food, Drug, and Cosmetic Act (FD&C Act) and Section 351 of the Public Health Service Act. Among other things:

a)    The FDA requires a cannabis product (hemp-derived or otherwise) that is marketed with a claim of therapeutic benefit, or with any other disease claim, to be approved by the FDA for its intended use before it may be introduced into interstate commerce.

b)    It is unlawful under the FD&C Act to introduce food containing added CBD or THC into interstate commerce, or to market CBD or THC products as (or in) dietary supplements, regardless of whether the substances are hemp-derived. This is because both CBD and THC are active ingredients in FDA-approved drugs, and were the subject of substantial clinical investigations before they were marketed as foods or dietary supplements. It is illegal to introduce drug ingredients into the food supply, or to market them as dietary supplements. 

In summary, it is still unlawful to market CBD derived from hemp with any claim of therapeutic benefit, to add it to any food product, or to market it as (or in) a dietary supplement. 

Hemp legalization and US immigration laws

The legalization of hemp at the federal level will have significant implications for foreign nationals who will be involved in the US hemp industry. Since hemp (containing no more than 0.3 percent of THC) has now been removed from the CSA, the controlled substance grounds of inadmissibility contained in the Immigration and Nationality Act[5] (INA) will no longer apply. 

For example, according to INA §212(a)(2)(A)(i)(II), individuals who have been convicted of, or who admit to having committed the essential elements of, a violation of (or a conspiracy or attempt to violate) any law or regulation of a state, the United States, or a foreign country relating to a controlled substance (as defined in the CSA) are inadmissible. The recent enactment of the 2018 Farm Bill has resulted in the following changes:

a)    Prosecutions for hemp-related offenses in the United States occurring after December 20, 2018, are unlikely. However, if it is determined that a hemp producer in the State or territory has violated the State or Tribal plan with a culpable mental state greater than negligence, that hemp producer could be subject to prosecution. If that violation involves the cultivation of hemp having more than 0.3 percent THC (which is still considered a Schedule 1 controlled substance), a prosecution under the CSA is also possible. A conviction under the CSA would result in inadmissibility under INA §212(a)(2)(A)(i)(II). 

b)    Hemp-related convictions in the United States prior to December 20, 2018, could still result in inadmissibility under INA §212(a)(2)(A)(i)(II), since those offenses would have occurred before hemp became legal at the federal level. Admitting to the commission of a hemp-related offence prior to December 20, 2018, could also result in inadmissibility even if the admission did not occur until after hemp became legal at the federal level.

c)    Since INA §212(a)(2)(A)(i)(II) incorporates by reference the five schedules of controlled substances described in the CSA (which no longer includes hemp that contains no more than 0.3 percent of THC), a hemp-related conviction occurring after December 20, 2018, in a foreign jurisdiction where it remains illegal, would not result in inadmissibility under this ground. 

INA §212(a)(2)(C) permanently bars a foreign national if an immigration official has reason to believe that he or she is (or has been) an illicit trafficker in a controlled substance or any listed chemical (as defined in Section 102 of the CSA), or a knowing assister, abettor, conspirator or colluder in illicit trafficking of such controlled substances or listed chemicals. This is the ground of inadmissibility that would typically be applied to employees (and investors) of hemp businesses. The recent enactment of the 2018 Farm Bill has resulted in the following changes:

a)    As hemp containing no more than 0.3 percent of THC is no longer considered a controlled substance under the CSA, employment or investment in a US hemp business after December 20, 2018, would not result in a finding of inadmissibility under INA §212(a)(2)(C). 

b)    Employment or investment in a US hemp business prior to December 20, 2018, could result in inadmissibility since hemp would still have been a Schedule 1 controlled substance under the CSA at the time of the offense.

Lawful permanent residents of the United States who seek to naturalize as United States citizens are required to demonstrate good moral character during the statutory period (which is normally the five-year period preceding the filing of the naturalization application).[6] However, the INA and Chapter 8 of the Code of Federal Regulations (8 CFR) list specific situations that automatically preclude a finding of good moral character.[7] This includes a bar for violations of any law of the United States, any state, or any foreign country relating to a controlled substance, other than a single offense for simple possession of 30 grams or less of marijuana. 

Fortunately, any activities relating to hemp (which contains no more than 0.3 percent of THC) occurring after December 20, 2018, would not be considered a violation of a law relating to a controlled substance. However, hemp-related activities, occurring prior to December 20, 2018, could be considered a violation of controlled substance laws, since hemp was still considered a Schedule 1 controlled substance prior to that date. Such a violation could result in a denial of US citizenship. 

Conclusion

The 2018 Farm Bill has had a significant effect on the application of US immigration laws as they relate to hemp-related activities. Although such activities could still result in inadmissibility in limited circumstances (including the cultivation, production or possession of hemp containing more than 0.3% of THC or hemp-related offenses occurring prior to December 20, 2018), the risk of being found inadmissible under the INA for hemp-related activity will be relatively low.

[1] 2018 Farm Bill, Section 12619.

[2] 2018 Farm Bill, Section 10113.

[3] Id.

[4] 2018 Farm Bill, Section 10114. 

[5] Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC §§1101–1524).

[6] INA 316(e); 8 CFR 316.10.

[7] INA §101(f) and 8 CFR §316.10(b).