House Study Bill 646 - Introduced SENATE/HOUSE FILE _____ BY (PROPOSED GOVERNOR’S OFFICE OF DRUG CONTROL POLICY BILL) A BILL FOR An Act relating to the regulation of hemp, including by 1 providing for testing methods and the regulation of hemp 2 products, providing penalties, making penalties applicable, 3 and including effective date provisions. 4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 5 TLSB 5404XD (13) 88 da/ns
S.F. _____ H.F. _____ DIVISION I 1 PRINCIPAL PROVISIONS 2 Section 1. Section 204.2, Code 2020, is amended by adding 3 the following new subsections: 4 NEW SUBSECTION . 01. “Consumable hemp product” means a 5 hemp product that includes a substance that is metabolized 6 or is otherwise subject to a biotransformative process when 7 introduced into a human or animal body. 8 a. A consumable hemp product may be introduced into a human 9 or animal body by ingestion, absorption, or inhalation by any 10 device including but not limited to an electronic device. 11 b. A consumable hemp product may exist in a solid, liquid, 12 or gaseous state. 13 c. A hemp product is deemed to be a consumable hemp product 14 if it is any of the following: 15 (1) Designed by the processor, including the manufacturer, 16 to be introduced into a human or animal body. 17 (2) Advertised as an item to be introduced into a human or 18 animal body. 19 (3) Distributed, exported, or imported for sale or 20 distribution to be introduced into a human or animal body. 21 d. “Consumable hemp product” includes but is not limited to 22 any of the following: 23 (1) (a) A combustible or noncombustible form of hemp that 24 may be inhaled when used as part of a device including but not 25 limited to any type of cigarette, cigarillo, cigar, or pipe. 26 (b) A noncombustible form of hemp that may be digested, 27 such as food; internally absorbed, such as chew or snuff; or 28 absorbed through the skin, such as a topical application. 29 (2) Hemp processed or otherwise manufactured, marketed, 30 sold, or distributed as human or animal food, a human or animal 31 food additive, a human or animal dietary supplement, or a human 32 or animal drug. 33 NEW SUBSECTION . 4A. “Federal Food, Drug, and Cosmetic Act” 34 means the Act so entitled as codified in 21 U.S.C. §301 et 35 -1- LSB 5404XD (13) 88 da/ns 1/ 12
S.F. _____ H.F. _____ seq., including regulations adopted pursuant to that Act by the 1 United States food and drug administration under the Code of 2 Federal Regulations, Title 21. 3 NEW SUBSECTION . 13. “Total delta-9 tetrahydrocannabinol 4 concentration” means the sum of the delta-9 tetrahydrocannabinol 5 and delta-9 tetrahydrocannabinolic acid content expressed as 6 a percentage and reported on a dry weight basis as determined 7 according to a test as provided in section 204.8. 8 Sec. 2. Section 204.2, subsections 5, 6, and 8, Code 2020, 9 are amended to read as follows: 10 5. a. “Federal hemp law” means that part of Tit. X of the 11 Agriculture Improvement Act of 2018, Pub. L. No. 115-334, that 12 authorizes hemp production according to a state plan approved 13 by the United States department of agriculture, as provided in 14 §10113 of that Act, amending the Agricultural Marketing Act of 15 1946, 7 U.S.C. §1621 et seq., including by adding §297A through 16 297E. 17 b. “Federal hemp law” includes rules adopted by the United 18 States department of agriculture pursuant to the provisions 19 described in paragraph “a” , including regulations provided in 20 7 C.F.R. pt. 990. 21 6. a. “Hemp” means the plant cannabis sativa L. and any 22 part of that plant, including the seeds thereof, and all 23 derivatives, extracts, cannabinoids, isomers, acids, salts, 24 and salts of isomers, whether growing or not, with a total 25 delta-9 tetrahydrocannabinol concentration of not more than not 26 exceeding three-tenths of one percent on a dry weight basis . 27 b. “Hemp” also means a plant of the genus cannabis 28 other than cannabis sativa L., with a total delta-9 29 tetrahydrocannabinol concentration of not more than not 30 exceeding three-tenths of one percent on a dry weight basis , 31 but only to the extent allowed by the department in accordance 32 with applicable federal law, including the federal hemp law. 33 8. a. “Hemp product” means an item derived from or made 34 by processing hemp or parts of hemp, including but not limited 35 -2- LSB 5404XD (13) 88 da/ns 2/ 12
S.F. _____ H.F. _____ to any item manufactured from hemp, including but not limited 1 to such as cloth, cordage, fiber, food, fuel, paint, paper, 2 particle board, plastic, hemp seed, seed meal, or seed oil. 3 b. “Hemp product” does not include any of the following: 4 (1) An item or part of an item with a maximum total delta-9 5 tetrahydrocannabinol concentration that exceeds exceeding 6 three-tenths of one percent on a dry weight basis . 7 (2) Hemp seed that is capable of germination. 8 Sec. 3. NEW SECTION . 204.2A Applicability —— other state 9 law. 10 This chapter does not limit the regulation of articles under 11 other provisions of state law, including title IV and this 12 title. 13 Sec. 4. Section 204.7, subsection 9, Code 2020, is amended 14 to read as follows: 15 9. a. Except as otherwise provided in section 204.14A, all 16 of the following apply: 17 (1) A person may engage in the retail sale of a hemp product 18 if the all of the following apply: 19 (a) The hemp was produced in this state or another state 20 in compliance with the federal hemp law or other applicable 21 federal law. A person may engage in the retail sale of a hemp 22 product if the hemp was produced in another jurisdiction in 23 compliance with applicable federal law and the laws of the 24 other jurisdiction, if such law is substantially the same as 25 applicable federal law. 26 (b) The hemp product is sold in compliance with the federal 27 Food, Drug, and Cosmetic Act and other applicable federal law. 28 b. (2) To the extent consistent with the federal Food, 29 Drug, and Cosmetic Act and other applicable federal law, a 30 derivative of hemp, including hemp-derived cannabidiol, may 31 be added to cosmetics, personal care products, and products 32 intended for human or animal consumption. The addition of such 33 a derivative shall not be considered an adulteration of the 34 product, unless otherwise provided in the federal Food, Drug, 35 -3- LSB 5404XD (13) 88 da/ns 3/ 12
S.F. _____ H.F. _____ and Cosmetic Act and other applicable federal law. 1 c. (3) A person may transport a hemp product within and 2 through this state and may export a hemp product to any foreign 3 nation, in accordance with applicable federal law and the law 4 of the foreign nation. 5 d. b. A hemp product complying with this subsection 6 paragraph “a” is not a controlled substance under chapter 124 7 or 453B . 8 Sec. 5. Section 204.8, subsection 1, paragraph c, Code 2020, 9 is amended to read as follows: 10 c. The department shall provide the department of public 11 safety any official test results of a sample that indicate 12 a sample exceeds the maximum concentration of total delta-9 13 tetrahydrocannabinol in excess of concentration exceeding two 14 percent on a dry weight basis . 15 Sec. 6. Section 204.8, subsection 3, Code 2020, is amended 16 to read as follows: 17 3. The official test shall be a composite test of the 18 plants obtained by the department from a licensee’s crop site 19 during the annual inspection and shall be conducted by a 20 laboratory designated by the department. The sample must have 21 a maximum concentration of test must indicate a total delta-9 22 tetrahydrocannabinol that does not exceed concentration not 23 exceeding three-tenths of one percent on a dry weight basis . 24 Sec. 7. Section 204.8, Code 2020, is amended by adding the 25 following new subsection: 26 NEW SUBSECTION . 5. A test conducted pursuant to this 27 section must use decarboxylation or another similarly reliable 28 analytical method as specified or approved by the United States 29 department of agriculture, including as provided in 7 C.F.R. 30 pt. 990. 31 Sec. 8. Section 204.9, subsection 2, paragraph b, Code 2020, 32 is amended to read as follows: 33 b. The department of public safety or a local law 34 enforcement agency may obtain a sample of plants that are part 35 -4- LSB 5404XD (13) 88 da/ns 4/ 12
S.F. _____ H.F. _____ of the crop and provide for a test of that sample as provided in 1 section 204.8 . The department of public safety or a local law 2 enforcement agency shall not impose, assess, or collect a fee 3 for conducting an inspection or test under this section . 4 Sec. 9. Section 204.10, subsection 1, Code 2020, is amended 5 to read as follows: 6 1. If a sample of a crop that is produced at a licensee’s 7 crop site does not qualify as hemp indicates a total delta-9 8 tetrahydrocannabinol concentration exceeding three-tenths 9 of one percent, but not exceeding two percent, according to 10 an official test conducted pursuant to section 204.8 , the 11 department, in consultation with the department of public 12 safety, shall order the disposal of the crop by destruction 13 at the site or if necessary require the crop to be removed to 14 another location for destruction. 15 Sec. 10. NEW SECTION . 204.14A Consumable hemp products —— 16 criminal offense. 17 1. Except as provided in subsection 3, a person shall not 18 process or otherwise manufacture, transport, deliver, market, 19 sell, distribute, possess, or use a consumable hemp product. 20 2. A person who violates subsection 1 is guilty of a serious 21 misdemeanor. 22 3. Subsection 1 does not apply to the extent that the 23 federal Food, Drug, and Cosmetic Act or other applicable 24 federal law authorizes or recognizes the processing or 25 manufacturing, transportation, delivery, marketing, sale, or 26 distribution, possession, or use of a consumable hemp product 27 for its intended use by a method for introduction into the body 28 of a human or animal. 29 Sec. 11. NEW SECTION . 204.14B Consumable hemp products —— 30 notice. 31 A person shall not sell a consumable hemp product on a 32 retail basis unless the sale is authorized or recognized by 33 the federal Food, Drug, and Cosmetic Act or other applicable 34 federal law, and the person notifies retail purchasers of the 35 -5- LSB 5404XD (13) 88 da/ns 5/ 12
S.F. _____ H.F. _____ consumable hemp product’s intended use. The notice shall be 1 posted in a manner and format required by rules adopted by 2 the department. However, the notice shall be posted in a 3 conspicuous place where the consumable hemp product is offered 4 for sale. 5 Sec. 12. Section 204.15, subsection 1, paragraph a, 6 subparagraph (3), Code 2020, is amended to read as follows: 7 (3) Producing a crop on the licensee’s crop site with a 8 maximum concentration of total delta-9 tetrahydrocannabinol 9 that exceeds concentration exceeding three-tenths of one 10 percent according to the results of an official test of a 11 sample obtained from the licensed crop site pursuant to an 12 inspection conducted under section 204.8 . 13 Sec. 13. Section 204.15, subsection 1, paragraph b, Code 14 2020, is amended to read as follows: 15 b. It is conclusively presumed that a licensee acted 16 with a culpable mental state greater than negligence, if 17 the department obtains a sample of a crop produced on the 18 licensee’s crop site and the official test results of the 19 sample conducted pursuant to section 204.8 indicate a maximum 20 concentration of total delta-9 tetrahydrocannabinol in excess 21 of concentration exceeding two percent on a dry weight basis . 22 Sec. 14. Section 204.15, subsection 3, Code 2020, is amended 23 to read as follows: 24 3. A licensee shall not participate in the negligent 25 violation program, if a official test results of a sample of 26 plants that are part of a crop produced on the licensee’s crop 27 site exceeds a maximum concentration of two percent indicate 28 a total delta-9 tetrahydrocannabinol on a dry weight basis 29 concentration exceeding two percent . 30 Sec. 15. Section 718.6, Code 2020, is amended by adding the 31 following new subsection: 32 NEW SUBSECTION . 4. A person who knowingly identifies a 33 controlled substance, as defined in section 124.101, as hemp or 34 a hemp product, as those terms are defined in section 204.2, 35 -6- LSB 5404XD (13) 88 da/ns 6/ 12
S.F. _____ H.F. _____ to a law enforcement officer, commits a simple misdemeanor. 1 However, if the controlled substance is an element or part of 2 an element in the criminal offense for which the person may be 3 charged, and that criminal offense is punishable as a serious 4 or aggravated misdemeanor or a felony, the person commits a 5 serious misdemeanor. 6 DIVISION II 7 COORDINATING PROVISIONS 8 Sec. 16. Section 124.101, Code 2020, is amended by adding 9 the following new subsections: 10 NEW SUBSECTION . 15A. “Hemp” means the same as defined in 11 section 204.2. 12 NEW SUBSECTION . 15B. “Hemp product” means the same as 13 defined in section 204.2. 14 NEW SUBSECTION . 30A. “Total delta-9 tetrahydrocannabinol 15 concentration” means the same as defined in section 204.2. 16 Sec. 17. Section 124.204, subsection 7, paragraph b, as 17 enacted by 2019 Iowa Acts, chapter 130, section 23, is amended 18 to read as follows: 19 b. (1) Hemp as defined in section 204.2 that is or was 20 produced in this state, or was produced in another state, in 21 accordance with the provisions of chapter 204 with a maximum 22 total delta-9 tetrahydrocannabinol concentration that does not 23 exceed exceeding three-tenths of one percent on a dry weight 24 basis . 25 (2) A hemp product as provided in chapter 204 with a maximum 26 total delta-9 tetrahydrocannabinol concentration that does not 27 exceed exceeding three-tenths of one percent on a dry weight 28 basis . 29 Sec. 18. Section 124.401H, subsection 3, as enacted by 30 2019 Iowa Acts, chapter 130, section 25, is amended to read as 31 follows: 32 3. The offense arises out of a test of a sample of plants 33 that are part of a crop produced on the licensee’s crop 34 site , and the test indicates that the sample does not qualify 35 -7- LSB 5404XD (13) 88 da/ns 7/ 12
S.F. _____ H.F. _____ as hemp under section 204.8 , and does not exceed a maximum 1 concentration of two percent the test result indicates that the 2 crop has a total delta-9 tetrahydrocannabinol on a dry weight 3 basis concentration not exceeding two percent . 4 Sec. 19. Section 124.506, Code 2020, is amended by adding 5 the following new subsection: 6 NEW SUBSECTION . 4A. According to an order for the disposal 7 of a crop that does not qualify as hemp as provided in section 8 204.10. 9 Sec. 20. Section 453B.1, Code 2020, is amended by adding the 10 following new subsection: 11 NEW SUBSECTION . 10A. “Total delta-9 tetrahydrocannabinol 12 concentration” means the same as defined in section 204.2. 13 Sec. 21. Section 453B.18, subsection 3, as enacted by 2019 14 Iowa Acts, chapter 130, section 32, is amended to read as 15 follows: 16 3. The offense arises out of a test of a sample of plants 17 that are part of a crop produced on the licensee’s crop site , 18 and the test indicates that the sample does not qualify as 19 hemp under section 204.8 , and it does not exceed a maximum 20 concentration of two percent the test indicates that the crop 21 has a total delta-9 tetrahydrocannabinol on a dry weight basis 22 concentration not exceeding two percent . 23 DIVISION III 24 CONTINGENT EFFECTIVE DATE 25 Sec. 22. CONTINGENT EFFECTIVE DATE. 26 1. Except as provided in subsection 2, this Act takes effect 27 on the date that chapter 204 is implemented as provided in 2019 28 Iowa Acts, chapter 130, section 18, subsection 1. 29 2. a. If the department of agriculture and land 30 stewardship, in cooperation with the department of public 31 safety, determines that the United States department of 32 agriculture must approve any amendment to an existing provision 33 or new provision enacted in this Act as part of a state plan 34 pursuant to section 204.3, the secretary of agriculture shall 35 -8- LSB 5404XD (13) 88 da/ns 8/ 12
S.F. _____ H.F. _____ publish a notice of that fact in the Iowa administrative 1 bulletin. The department of agriculture and land stewardship 2 shall forward a copy of the statement to the Code editor prior 3 to publication. 4 b. If a determination is made as provided in paragraph 5 “a”, the amendment or new provision enacted in this Act takes 6 effect on the publication date of the edition of the Iowa 7 administrative bulletin that includes a statement by the 8 secretary of agriculture of the department of agriculture and 9 land stewardship certifying that the United States department 10 of agriculture has approved the amendment or provision. The 11 department of agriculture and land stewardship shall forward a 12 copy of the statement to the Code editor prior to publication. 13 3. This section does not affect the implementation of 14 provisions amended or enacted in 2019 Iowa Acts, chapter 130. 15 EXPLANATION 16 The inclusion of this explanation does not constitute agreement with 17 the explanation’s substance by the members of the general assembly. 18 BACKGROUND —— GENERAL. This bill amends a number of 19 provisions enacted in 2019 Iowa Acts, chapter 130 (Iowa’s 2019 20 Act). Division I of that Act creates Code chapter 204, the 21 “Iowa Hemp Act” (IHA) (see Code section 204.1), authorizing the 22 production of a certain type of cannabis (sativa L.). Division 23 II of that Act includes a number of coordinating provisions, 24 including amendments that remove hemp from the list of schedule 25 I controlled substances (see Code chapters 124 and 453B). 26 BACKGROUND —— JURISDICTION OF THE UNITED STATES DEPARTMENT 27 OF AGRICULTURE. Iowa’s 2019 Act was enacted after the 28 enactment of the federal Agriculture Improvement Act of 2018, 29 commonly known as the 2018 farm bill, including provisions 30 allowing the production of hemp (7 U.S.C. §1639o et seq.). The 31 IHA refers to these provisions as the “federal hemp law” (Code 32 section 204.2). The federal hemp law allows states and tribes 33 to assume primary regulatory authority over the production of 34 hemp by submitting a plan for approval by the United States 35 -9- LSB 5404XD (13) 88 da/ns 9/ 12
S.F. _____ H.F. _____ department of agriculture (USDA). The IHA assigns principal 1 regulatory authority over hemp production to the department 2 of agriculture and land stewardship (DALS), which must act in 3 cooperation with the department of public safety (DPS). The 4 USDA has published its interim rules to implement the federal 5 hemp law (7 C.F.R. pt. 990). The USDA has neither approved nor 6 disapproved Iowa’s state plan. 7 BACKGROUND —— JURISDICTION OF THE UNITED STATES FOOD AND 8 DRUG ADMINISTRATION. By its own terms, the federal hemp 9 law does not affect or modify the federal Food, Drug, and 10 Cosmetic Act (FDCA) (21 U.S.C. §301 et seq.), and therefore the 11 authority of the United States food and drug administration 12 (FDA) to regulate human and animal foods and additives, dietary 13 supplements, human and veterinary drugs, and cosmetics is 14 preserved (see 7 U.S.C. §1639r). 15 BACKGROUND —— IMPLEMENTATION AND EFFECTIVE DATES. The 16 provisions of Iowa’s 2019 Act that enacted the IHA took effect 17 May 13, 2019, but will be implemented only if the USDA approves 18 Iowa’s state plan. The implementation date is the publication 19 date of the edition of the Iowa administrative bulletin 20 (IAB) that includes a statement by DALS certifying approval 21 (2019 Iowa Acts, chapter 130, section 18). The coordinating 22 amendments will take effect on the IAB’s publication date and 23 are therefore contingent on the IHA’s implementation (2019 Iowa 24 Acts, chapter 130, section 33). 25 DIVISION I —— PRINCIPAL PROVISIONS. The IHA follows the 26 federal hemp law by defining hemp as a species of cannabis 27 (e.g., sativa L.) having a maximum concentration of delta-9 28 tetrahydrocannabinol (THC) not exceeding three-tenths of 1 29 percent as calculated on a dry weight basis. The bill modifies 30 the testing methodology in accordance with the USDA interim 31 regulations. The bill requires testing that calculates a value 32 produced from a process referred to as decarboxylation that 33 determines the “total” potential delta-9 tetrahydrocannabinol 34 which equals the sum of the THC and a related compound, 35 -10- LSB 5404XD (13) 88 da/ns 10/ 12
S.F. _____ H.F. _____ tetrahydrocannabinolic acid (THC-A), reported on a dry weight 1 basis (Code sections 204.2 and 204.8). 2 DIVISION I —— REGULATION OF HEMP PRODUCTS. The IHA defines 3 a hemp product as derived from or made by processing hemp or 4 parts of hemp. Generally, the IHA allows a person to engage 5 in the retail sale of a hemp product so long as the hemp was 6 produced in this state or another state in compliance with the 7 federal hemp law (Code section 204.7(9)). The bill provides 8 that the sale of a hemp product is authorized if allowed by the 9 FDCA or other applicable federal law. 10 DIVISION I —— SPECIAL REGULATIONS APPLICABLE TO CONSUMABLE 11 HEMP PRODUCTS. The bill amends the IHA by defining a 12 consumable hemp product as a hemp product that may be 13 introduced into a human or animal body either directly or 14 via a device (e.g., a skin patch, pipe, cigarette, cigar, or 15 cigarillo) (Code section 204.2). The bill prohibits a person 16 from processing or otherwise manufacturing, transporting, 17 delivering, marketing, selling, distributing, possessing, 18 or using a consumable hemp product. A person violating 19 the prohibition is guilty of a serious misdemeanor. This 20 prohibition does not apply to the extent that the FDCA or other 21 applicable federal law authorizes or recognizes the processing, 22 manufacture, transportation, delivery, marketing, sale, 23 distribution, possession, or use of a consumable hemp product 24 for its intended use by a method for introduction into the body 25 of a human or animal. The bill also requires a person who sells 26 a consumable hemp product on a retail basis as authorized by 27 the FDCA to notify retail purchasers of the consumable hemp 28 product’s intended use. The notice must be posted in a manner 29 and format required by rules adopted by DALS. 30 DIVISION I —— WRONGFULLY IDENTIFYING HEMP. The bill 31 amends Code section 718.6 to prohibit a person from knowingly 32 identifying a controlled substance as hemp or a hemp product to 33 a law enforcement officer. Generally, the person who commits 34 the offense is guilty of a simple misdemeanor. However, that 35 -11- LSB 5404XD (13) 88 da/ns 11/ 12
S.F. _____ H.F. _____ person commits a serious misdemeanor if the criminal offense 1 relating to the controlled substance for which the person may 2 be charged is punishable as a serious or aggravated misdemeanor 3 or a felony. 4 DIVISION II —— COORDINATING PROVISIONS. The bill makes 5 changes to provisions in division II of the 2019 Iowa Act. 6 Specifically, it includes provisions that account for the IHA’s 7 new method of testing hemp based on the total sum of THC and 8 THC-A compounds. It also provides for the disposal of a crop 9 according to an order issued by DALS. 10 APPLICABLE CIVIL PENALTIES. A person who violates a 11 provision of the IHA is subject to a civil penalty of not 12 less than $500 and not more than $2,000 with each day of a 13 continuing offense considered as a separate offense (Code 14 section 204.12). DALS or the attorney general may seek 15 injunctive relief by petitioning a court (Code section 204.13). 16 CRIMINAL PENALTIES. A simple misdemeanor is punishable by 17 confinement for no more than 30 days or a fine of at least $65 18 but not more than $625 or by both. A serious misdemeanor is 19 punishable by confinement for no more than one year and a fine 20 of at least $315 but not more than $1,875. 21 DIVISION III —— CONTINGENT EFFECTIVE DATE. The bill takes 22 effect on the implementation date of Code chapter 204, unless 23 DALS, acting in coordination with DPS, determines that the 24 provisions must be submitted to the USDA for approval. In that 25 case, the provisions take effect when DALS publishes a notice 26 of the USDA’s approval in the IAB. 27 -12- LSB 5404XD (13) 88 da/ns 12/ 12