On August 21, 2019, the U.S. Environmental Protection Agency (EPA) announced its receipt of ten applications seeking to add new hemp uses to pesticide products registered under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). These submissions represent the first such applications received by EPA since last year’s passage of the Agricultural Improvement Act of 2018 (commonly known as the Farm Bill), which removed industrial hemp from its earlier classification as a controlled substance under the jurisdiction of the U.S. Department of Justice (DOJ). EPA is also opening a 30-day public comment period upon publication of notice in the Federal Register. 

Industrial hemp is considered any part of the cannabis plant with no more than 0.3 percent of tetrahydrocannabibol (THC) on a dry weight basis. Farm Bill Sec. 10113 (amending 7 U.S.C. 1621 et seq.). To date, EPA has not registered any pesticides for use on cannabis, citing the illegal status of cannabis under federal law, and as recently as 2017, had turned down efforts by certain states to approve “Special Local Needs” registrations under FIFRA Section 24(c) that would have allowed cannabis uses for pesticides within those states. With the legalization of industrial hemp under the Farm Bill, however, EPA now has an opportunity to consider approving nationwide, registered pesticide uses on hemp grown in full accordance with federal law.

The active ingredients contained in the registered products subject to the newly received hemp use applications are:

• Azadirachtin
• Neem oil
• Extract of Reynoutria sachalinensis
• Bacillus amyloliquifaciens strains
• Soybean oil
• Garlic oil
• Capsicum oleoresin extract
• Potassium salts of fatty acids

According to EPA, the availability of FIFRA-registered pesticide products “will likely be essential to supporting the success” of the hemp production industry going forward. EPA notes that it is providing an opportunity to comment at this time due to “potential significant interest from the public” and to further EPA’s transparency goals. EPA does not view itself as statutorily required to provide this comment opportunity and does not anticipate notifying the public of its receipt of similar applications in the future. In its notice, EPA explains that because hemp falls under existing terrestrial outdoor and residential outdoor use patterns previously assessed and approved by EPA for the subject products, the FIFRA section 3(c)(4) requirement to publish notice of any application that entails a “changed use pattern” is not triggered. 

Hemp farmers, pesticide manufacturers, and other ancillary businesses supporting the hemp industry should take advantage of EPA’s public comment opportunity. On July 25, 2019, the US Senate’s Committee on Agriculture, Nutrition and Forestry conducted a detailed hearing on hemp, at which Committee members stated that government agencies should work in a cooperative manner to ensure that regulatory processes are constructed with robust communication and input from all involved. The overwhelming public interest in hemp, combined with statements from multiple federal agencies evincing an intent to work together, suggests that public opinion will continue to influence the development of thorough, common-sense regulations for an industry seeking guidance on how it can comply with the law. 

Beveridge & Diamond's Industrial Hemp & Cannabis industry group assists cannabis-based businesses with state-level environmental compliance, product liability, project planning, environmental risk avoidance, and, where appropriate, litigation services and defense against state-level environmental enforcement actions. For more information, please contact the authors.

Possession, use, distribution, and sale of cannabis may be a federal crime. This alert is not intended to provide any guidance or assistance in violating federal law, or in providing guidance or assistance in complying with federal law.