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“The reason I’m bringing this forward is to make certain hemp is hemp and hemp growers do not get out of their lane.”
By Tim Carpenter, Kansas Reflector
State law enforcement, local prosecutors and a lobbyist convinced legalization of medical marijuana posed the greatest threat to quality of life in Kansas tried to quietly squeeze into a bill lowering fees on industrial hemp producers an amendment that could send wayward farmers to prison for years.
The threshold between freedom and incarceration under the amendment advocated by the executive director of Stand Up for Kansas, the Kansas Bureau of Investigation and the Kansas County and District Attorneys Association would be a laboratory test measuring whether a hemp product had a THC content greater than 1 percent. The U.S. Department of Agriculture and the state of Kansas allow harvesting, processing and marketing of hemp with less than 0.3 percent THC.
“I just need help understanding who are we going after? I hope it’s not our industrial hemp producers,” said Sen. Carolyn McGinn, a Sedgwick Republican and farmer. “Is there some place we can look to find out how much this is being abused? I’m trying to understand where all the abuse is at.”
Stand Up for Kansas leader Katie Whisman said she couldn’t document the threat posed by crooked hemp farmers. The former Kansas Bureau of Investigation administrator did say establishment of industrial hemp as a row crop in Kansas created “a lot of confusion for law enforcement” personnel. She said one source of frustration was the challenge of differentiating between legal hemp and illegal marijuana.
“They look the same,” she said. “They smell the same. Is that hemp? Is that marijuana? How do we enforce that?”
Third-level sentencing
Current Kansas law mandated legal industrial hemp products contain less than 0.3 percent THC. Existing state statute says first-time violators could be charged with a misdemeanor and a second offense could be a low-grade felony resulting in probation.
Whisman’s amendment would retain those sentencing standards for hemp, but add a third layer of penalties so law enforcement officers could raise the stakes for hemp industry participants trafficking higher-level THC products. Depending on the quantity of hemp testing higher than 1 percent THC, the proposed revision of state law could lead to sentences as long as 154 months.
The new THC metric should be deployed, Whisman said, despite presence of profoundly higher THC levels in marijuana demanded by recreational consumers in Colorado and Missouri.
Greenlight Marijuana Dispensary, which is 750 feet from the Kansas border in Kansas City, Missouri, offered cannabis ranging from 16 percent to 30 percent THC. There were dozens of choices, but middle-of-the-road options included Baja Fog registering at 23.6 percent THC with Space Cowboy budlets at 24.8 percent, Platinum Jelly Cake at 25 percent and Gary Payton budlets at 26 percent.
At least 16 states have authorized medical marijuana programs only, and 24 states legalized recreational consumption of cannabis, but Kansas has done neither.
Rogue hemp farmers?
The plan to crack down on potential hemp farm renegades interested Havana Sen. Virgil Peck, the Republican chairman of the Senate Agriculture and Natural Resources Committee. He welcomed Whisman’s unconventional presentation on the law enforcement request to the six House and Senate negotiators working last week on compromise agriculture legislation.
“The reason I’m bringing this forward is to make certain hemp is hemp and hemp growers do not get out of their lane,” Peck said. “It’s the real reason, just to cut to the chase, why I am presenting this.”
The proposal appeared to catch several negotiators off guard, and the House agriculture committee chairman, Agra GOP Rep. Ken Rahjes, said he wouldn’t agree to add the proposal to a bill.
“I understand the heartburn,” Peck said before rescinding his commitment to endorse conservation district and poultry bills sought by the House. Hardball politics left the agriculture bill with prohibitions on spying at confined animal operations and tweaks to state law on registering horse and cattle brands.
The negotiators could resume talks on hemp law when the Legislature returns to Topeka at the end of the month. If the hemp crime amendment was eventually placed in a conference committee bill, the maneuver would serve as a textbook distortion of the legislative process.
Typically, advocates of reform begin with introduction of a bill in the House or Senate. That could lead to a public hearing and committee votes. Advocates of a bill must labor to win majority support in the 125-member House and 40-member Senate. If graced by good fortune on both sides of the Capitol, the proponents could seek support from a governor with veto power.
Whisman sought to circumvent that lengthy and complicated process by asking to include the hemp crime amendment in a bundle of bills subject to take-it-or-leave-it votes in both chambers.
In addition to skepticism shared by Republicans McGinn and Rahjes, Democratic Rep. Sydney Carlin of Manhattan made it known the recommended adjustment to criminal code in relation to hemp farming should be handled by a committee dedicated to judicial or corrections issues.
“I’m uncomfortable,” Carlin said. “This kind of a deal doesn’t seem to be an ag committee thing. We’re now going to punishment.”
Sen. Mary Ware (D-Wichita) said she was told testing equipment used in Kansas produced inaccurate readings indicating hemp products had too much THC. She said the state should invest in a rigorous, accurate evaluation system for Kansas-grown hemp.
Drag on legislative process
Kansas Livestock Association (KLA) attorney Aaron Popelka said he didn’t have an opinion about merits of altering law on prosecution of hemp cases. He did argue the unvetted amendment offered by Whisman could weigh down and jeopardize passage of the underlying bill anchored to a prohibition against drones and aircraft flying lower than 500 feet over confined animal feeding operations and agricultural research facilities.
The KLA sought no-fly-low zones to make it difficult for animal-rights organizations to deploy aerial cameras while searching for evidence of cruelty at cattle feedlots or dairy operations as well as other livestock facilities. In 2021, the 10th Circuit of the U.S. Court of Appeals agreed with a lower court decision to declare unconstitutional Kansas’ “ag-gag” law shielding confined animal facilities from prying eyes.
“The concern is if this is added, given the consternation, what does it do to the underlying ag-centric package?” Popelka said.
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Earlier, Popelka had much the same view when Rahjes invited the conference committee to consider a similarly unvetted, late-arriving amendment from Steve Hitchcock of the Kansas Association of Aerial Applicators. Hitchcock asked that pilots who spray fields with fertilizer or herbicide be held to Federal Aviation Administration standards for safe operation of aircraft rather than the proposed state law setting a flight ceiling over livestock operations.
“I think this is to address the problem of activism, trespassing and drones to film things or in other ways impede what’s going on at the facility,” Hitchcock said. “The legacy agricultural support of aerial applications, I don’t think, is the target. I think it’s collateral damage.”
Popelka said the proposal from Hitchcock arose too late in the legislative process to be included in a bill package.
“This is the first we’ve heard the concern,” he said. “Inserting a blanket exemption, I think, sends maybe the wrong message.”
This story was first published by Kansas Reflector.
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