A policy statement on permitted hemp uses issued last week by the Illinois Department of Agriculture limits cannabis licensees from producing delta-8 or delta-9 from hemp oil, although attorneys and state trade associations have questions about the legal enforceability of the state’s policy.
“I don’t know where the authority to make that policy is coming from, because it’s not coming from the statute or in existing rules,” said attorney Bryna Dahlin from law firm Benesch. “I think this is a business decision craft growers are going to have to make. Do they want to defy the Department of Agriculture and litigate this issue?”
“It’s confusing, it needs more clarification,” said Scott Redman, executive director of the Illinois Independent Craft Growers Association. “To the extent they are doing something more restrictive than the act permits, under what authority are they doing that?”
[Read the 2020 Illinois hemp policy. Read the 2022 Illinois hemp policy.]
The March 3 “Policy Regarding Hemp and Hemp Derivatives” issued by the Department, applies to licensed craft growers, cultivators, and infusers. It is a restatement of a similar policy issued in 2020, although the new version includes a directive that, “Hemp and hemp derivatives may not be used to concentrate or to synthesize intoxicating compounds including but not limited to delta-9 tetrahydrocannabinol, delta-8 tetrahydrocannabinol or THC-O.”
A recent report by Grown In found that in Michigan, underground processors have been converting much cheaper hemp oil into THC oil, and then sneaking it past seed-to-sale tracking systems into the legal market. This problem has become so pervasive in Michigan, that state regulators are considering rules to simply legalize the process and regulate it.
In contrast, it appears that in Illinois, regulators are attempting to ban the process outright – although with a process that has dubious legal standing.
“It’s a policy that by all accounts is not being enforced,” said attorney David Standa from Greenspoon Marder. “And I get it. The Department of Agriculture has limited resources. They can’t be out there cracking down on every single entity that has hemp. My belief right now is that the science is moving too fast for the regulators.”
The Midwest Hemp Coalition has been attempting to talk with the Department of Agriculture about this policy and others for months, says organization co-founder, Kalee Hooghkirk.
Although this policy bans cannabis licensees from producing delta-8, Department policy on what is allowed for hemp processors to do with delta-8 remains largely silent, says Midwest Hemp Coalition’s co-founder, Kalee Hooghkirk. But the policy has a September 31 sunset, before hemp growers, who might sell their products to cannabis dispensaries, would harvest their crops.
“The majority of hemp harvest will be after September in October. I’m not sure who this policy is meant to benefit if it’s not benefiting farmers after their harvests,” said Hooghkirk who also doubts the policy’s enforceability.
“Our group has had a very hard time contacting [Cannabis Division Director] David Lakeman. It’s been difficult to get a hold of the Department and for our members to get a hold of the Department,” said Hooghkirk. “What is the likelihood that they are going to be able to enforce this if they can’t field phone calls?”
The Illinois Department of Agriculture did not respond to a request for comment by publication.