Colorado voters passed Amendment 64 to the state constitution in November 2012, legalizing small scale recreational use, sale and cultivation of marijuana. Following that development, the state legislature passed the Colorado Industrial Hemp Registration and Production Act, specifying a simple registration process for commercial and research acreage of industrial hemp in the state.
“The registration period opened on March 1, 2014 and closed on May 1,” Rob Carleton, deputy commissioner of the Colorado Department of Agriculture told NutraIngredients-USA. “The number of approved applicants is about 101, and there are a few pending applications.”
Carleton said the approvals amount to about 1,500 acres of hemp in the state for the present growing season. That is expected to rise significantly in coming years, especially as the registration period has now been extended to year-round.
The regulations approve cultivation of industrial hemp for commerical and research and development purposes, Carleton said. Industrial hemp and marijuana are different cultivars of the same plant, with hemp growing much taller, with thicker, more fibrous stalks. But for regulatory purposes, Colorado defines industrial hemp as having less than 0.3% THC content.
Colorado law draws a bright line between hemp cultivation the growing of marijuana for either the medical or recreational markets. If industrial growers unintentionally cross that line, they have a problem.
“We have a protocol for inspections, and we will do our own testing in our own lab. Our interest is to make sure that the THC level in that crop does not exceed 0.3%. If the crop was meant for commercial production and it comes in above that, they don’t really have a recourse except to destroy the crop. If it is a field meant for R&D, we will work with that grower to determine the disposition of that crop,” Carleton said.
Legality of finished ingredients
While the regulations pertain to THC as the marker compound, they don’t have anything to say about CBD, or cannabidiol, a non-narcotic fraction of the plant that has health properties of potenital interest to supplement formulators.
“Our jurisdiction of the plant takes it through harvest. We don’t have anything to say about what happens after that,” Carleton said.
Who does have that say is still a matter of some debate, Carleton admitted. Federal law still prohibts the cultivation of hemp and the use and sale of marijuana, though new chinks appear in that armor almost every day.
“With regard to the legality and the conflcit between state and federal law, that is an ongoing saga that is still getting sorted out,” Carleton said. “The US Attorney General’s office issued a memo last year that reaffirmed that it is still illegal on a federal level. But they say they would let the state use state law to control the cultivation. They said in effect as long as you are going to regulate it, we are not going to intervene.”
The question the becomes, if a hemp producer extracts oil and/or CBD from a crop, what is the legality of that product within Colorado? And could it be shipped across state lines? The message from the authorities seems to be: Stay tuned.
That uncertainty hasn’t stopped a company called CannaVest and its subsidiary US Hemp Oil from contracting with Colorado farmer Alfonzo Abeyta to grow a crop for the company this year. The company has announced plans to build a milling and extraction facility to make hemp seed oil, de-hulled hemp seeds, and hemp protein powder as well as process, market, and sell the high-value hemp fiber and hurds for construction materials and automotive parts.
The hazy legality picture hasn't fazed Christopher Boucher, CEO of CannaVest. Boucher was active at the Supply Side West trade show in Las Vegas last November, where US Hemp Oil was prominently advertising its CBD fractions for supplement use.
“I believe that is it a legal supplement ingredient. The pure oil is considered GRAS. Under the United States Uniform Tariff Code they tax and code hemp as a vegetable. I don’t know anything that’s a vegetable that isn’t GRAS. When we import it, it is always considered a vegetable, so that’s what we use in our declaratory actions,” he said.
Boucher is not alone in that determination; in March of last year Canadian company Abattis announced plans to bring a CBD-infused kombucha drink to market.