Last May Minnesota’s governor approved the state’s omnibus agriculture policy bill, which identifies “certain data about industrial hemp grower or processing applicants and licensees as private or nonpublic.” The bill (HF 4285) also requires the Minnesota Department of Agriculture (MDA) to securely maintain data on license applicants and to keep records about who requests information about hemp licensees.
Hemp farmers and other licensees will have the option to have their information appear on a public list of Hemp Program license holders if they so choose. The state also requires any individual or business that grows, processes, conducts research, or tests raw hemp to be licensed under the same state-approved industrial hemp program.
A new licensing system is being put in place, since the program is no longer in the pilot phase, and it must include a data collection process that conforms to federal interim rules that guide all state plans. However, since federal regulators are doing the cha-cha when it comes to finalizing hemp production policy, state regulators—and hemp farmers—will have to make sure they don’t fall out of step with the feds.
States and tribes still oversee regulation of hemp production in their jurisdictions and the U.S. Department of Agriculture has been approving separate plans all year. (USDA approved Minnesota’s plan in July.) But the USDA still lacks a federal regulation on industrial hemp production, and its interim final rule is controversial. This state-of-play, as the nation manages the aftermath of recent elections, decreases the likelihood the federal agency will complete its final rule by October 31, 2021. In fact, Senate Minority Leader Chuck Schumer (D-NY) asked USDA not to issue its final hemp regulations until 2022, which would allow states to continue using the hemp pilot program set by the 2014 Farm Bill.
The MDA’s pilot industrial hemp program ends December 31, 2020, after which commercial production, including licensing, is governed by the approved state plan and the Minnesota Industrial Hemp Development Act, effective January 1, 2021. This program is intended to function in tandem with the interim plan until next October—if all goes well.
MDA is required to audit information requests about hemp licensees and report them to the legislature, this requirement was included in the new law to address the concerns about how law enforcement or other entities might access and use the information. Minnesota—and other states or tribes—could need to revise, or at least review, their own data collection process to ensure they’re in line with the final USDA rule. Also, depending on their legislature’s stance they might need to consider establishing license security protocols.
Industrial hemp growers and farmers should be made aware of these practices, as well as similar ones. Hemp farmers and producers may need to alert their elected officials if the two-track system is causing them to violate either state or federal regulations. Because of the patchwork of state privacy laws hemp producers operating across state lines should be particularly vigilant.
Susan Burns of S Burns Associates is a business lawyer whose specialty is guiding small businesses that need steady or rapid growth strategies. This includes startups innovative industries such as small, sustainable food producers and industrial hemp producers.
Her career has focused on “doing well by doing good” and one of her guiding principles is “a bit of world-bettering is always encouraged.”
While completing her LL.M., Susan was a Legal Fellow for The Good Food Institute where she developed an interest in regulations on new food technology–particularly pathways for exporting cell-cultured food to Mexico.
Susan has leadership roles in the American Bar Association’s Section of International Law and is also a board member of the Minnesota Organic Advisory Task Force.
A Minnesota native, Susan earned her J.D. from Hamline University School of Law and her B.A. from the College of St. Benedict. She holds an LL.M. in Food and Agriculture Law from the University of Arkansas.
S Burns Associates