During the Joint Committee on Administrative Rules (JCAR) meeting Tuesday, Illinois officials backtracked on implementing a new hemp definition set forth by the Illinois Department of Agriculture (IDOA) and admitted language about “transportation of industrial hemp” that had been deleted from the new rulemakings “was a track change error in the back and forth on some of the drafts.” Today, JCAR released an updated draft for its Second Notice that reverted the definition of hemp to realign with the Agriculture Improvement Act of 2018 (2018 Farm Bill) and returned the “transportation of industrial hemp” language back into the new draft.

The 2018 Farm Bill defines hemp to mean “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta- 9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” Because delta-9-tetrahydrocannabinolic acid (THCA) does not convert into THC until combustion, delta-9 THC levels beneath the federal limit of 0.3 percent have been interpreted by the Drug Enforcement Administration (DEA) as federally legal hemp. This legal interpretation has led to the creation of unlicensed THCA flower and gummies being sold in stores and online.

During the JCAR meeting, David Lakeman, the division manager for cannabis and hemp at IDOA, reiterated three times that the new rulemakings were not intended to change the definition of hemp and that “IDOA has no authority or intent to ban hemp products via the rulemaking process.” IDOA did consider and incorporate stakeholder comments throughout the new rulemaking’s first and second notices.

Lakeman said, “It is the philosophy of the department that we be open and transparent with our rule processes. It is equally clear that we did not meet that standard in every case here, and I take responsibility for that. In our engagement with JCAR staff, we have agreed both to a 45-day extension and to an extensive stakeholder meeting in an attempt to make sure that we are meeting that standard of communication, transparency, and openness to the input from the industry and from those impacted by the rule to make sure that they are being heard, that those changes are able to be implemented as best we can and that we are meeting this committee’s standard for responsiveness and openness as we go through that process.”

Sam McGee, the counsel for the division of cannabis and hemp at IDOA, commented on the struggles of rulemaking when state law definitions are different from federal law definitions. “We’re implementing a federal program,” McGee said. “We need to comply with their definition, so in the initial proposed rule, we kind of attempted to work on a hybrid of the state definition, incorporating the aspects of the federal definition that we needed to have in the rule, which is namely the total THC standard of 0.3 percent which would include Delta 9 THC as well as THCA, as well as a reference like the seeds…but I think that created a higher level of confusion and concern, and the USDA was okay with that hybrid definition. However, I think as we’ve received comments, I think it would just be clearer to use the exact federal definition and our authority for that comes from a provision within the Industrial Hemp Act that states that if there’s a conflict between federal and state law, federal law should apply, so arguably it should already apply today, this would just merely clearly codify that so for purposes of our licensed growth program.”

Along with the federal definition of hemp and THC levels, the new rulemaking draft provisions dealing with the transportation of hemp that had been deleted have been included back into the draft.

“I think the two main provisions you’re talking about…were both put back in,” Lakeman said. “The .90 (provision) was (returned) entirely—and again, accepting full responsibility here—that was a track-change error in the back and forth on some of the drafts. And .1110 (provision), there was an original belief from us that that was covered in a different section, but given those concerns, we reinserted that section. Both of those are in the current rules that are before you to address those concerns that may have had a negative impact.”

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