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Senate Study Bill 1170 - IntroducedA Bill ForAn Act 1providing for the regulation of hemp, including by
2creating an affirmative defense in cases of criminal
3prosecution, and making penalties applicable.
4BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. Section 124.204, subsection 7, Code 2021, is
2amended to read as follows:
37. Exclusions. Schedule I does not consist of the plant
4cannabis if it is any of the following:
5a. Hemp as defined in section 204.2 that is or was produced
6in this state, or was produced in another state, in accordance
7with the provisions of chapter 204 with a maximum delta-9
8tetrahydrocannabinol concentration that does not exceed
9three-tenths of one percent on a dry weight basis.
10b. A hemp product as provided in chapter 204 with a maximum
11delta-9 tetrahydrocannabinol concentration that does not exceed
12three-tenths of one percent on a dry weight basis defined in
13section 204.2.
14 Sec. 2. Section 124.401, subsection 6, unnumbered paragraph
151, Code 2021, is amended to read as follows:
16Notwithstanding any other provision in this section to
17the contrary, and subject to section 124.401G, a person may
18produce, possess, use, harvest, handle, manufacture, market,
19transport, deliver, or distribute any of the following:
20 Sec. 3. Section 124.401G, Code 2021, is amended to read as
21follows:
22124.401G Iowa hemp Act — negligent violation program
23 compliance — affirmative defenses.
241. Notwithstanding any provision of this chapter to the
25contrary, a person shall not be guilty of an offense under
26this chapter, including under section 124.401 or 124.410, for
27 if the person proves by a preponderance of the evidence an
28affirmative defense of compliance with chapter 204 as provided
29in an applicable subsection of this section.
302. It is an affirmative defense to a prosecution
31for producing, possessing, using, harvesting, handling,
32manufacturing, marketing, transporting, delivering, or
33distributing the plant cannabis that the person complied with
34section 204.7, subsection 5 or 6.
353. It is an affirmative defense to a prosecution
-1-1forproducing, possessing, using, harvesting, handling,
2manufacturing, marketing, transporting, delivering, or
3distributing the plant cannabis pursuant to the results of a
4test conducted pursuant to section 204.8, if that all of the
5following apply:
61. a. The person holds a valid hemp license issued is a
7licensee under the negligent violation program administered by
8the department of agriculture and land stewardship as provided
9in chapter 204 section 204.15.
102. b. The plant is or was produced on the licensee’s crop
11site as provided in chapter 204.
123. c. The offense arises out of a test of a sample of
13plants that are part of a crop produced on the licensee’s crop
14site and the test indicates that the sample does not qualify
15as hemp under section 204.8 and does not exceed a maximum
16concentration of two percent delta-9 tetrahydrocannabinol on a
17dry weight basis.
184. d. The licensee is participating in or has successfully
19completed the negligent violation program that applies to the
20licensee’s crop site described in subsection 3 if such program
21is established by the department of agriculture and land
22stewardship pursuant to section 204.15 paragraph “c”.
234. a. It is an affirmative defense to a prosecution for
24possessing, using, handling, manufacturing, selling, marketing,
25transporting, delivering, or distributing an item derived from
26or made by processing the plant cannabis that the product meets
27the definition of a hemp product as defined in section 204.2.
28b. It is an affirmative defense to a prosecution for
29manufacturing, selling, or consuming a consumable hemp product
30as defined in section 204.2 that the consumable hemp product
31was manufactured, sold, or consumed in compliance with section
32204.7, subsection 8.
33 Sec. 4. Section 453B.5, Code 2021, is amended to read as
34follows:
35453B.5 Defense or immunity.
-2- 1This Except as provided in section 453B.18, this chapter
2does not provide in any manner a defense or affirmative defense
3to or immunity for a dealer from criminal prosecution pursuant
4to Iowa law.
5 Sec. 5. Section 453B.18, Code 2021, is amended by striking
6the section and inserting in lieu thereof the following:
7453B.18 Iowa hemp Act — affirmative defense.
81. Notwithstanding any provision of this chapter to the
9contrary, a person shall not be guilty of an offense under
10this chapter if the person proves by a preponderance of the
11evidence an affirmative defense of compliance with chapter 204
12as provided in an applicable subsection of this section.
132. It is an affirmative defense to a prosecution for
14manufacturing, producing, acquiring, purchasing, possessing,
15distributing, or offering for sale the plant cannabis that the
16person complied with section 204.7, subsection 5 or 6.
173. It is an affirmative defense to a prosecution for
18producing, possessing, using, harvesting, handling, or
19distributing the plant cannabis pursuant to the results of
20a test conducted pursuant to section 204.8 that all of the
21following apply:
22a. The person is a licensee under the negligent violation
23program administered by the department of agriculture and land
24stewardship as provided in section 204.15.
25b. The plant is or was produced on the licensee’s crop site
26as provided in chapter 204.
27c. The offense arises out of a test of a sample of plants
28that are part of a crop produced on the licensee’s crop site
29and the test indicates that the sample does not qualify as hemp
30under section 204.8 and does not exceed a maximum concentration
31of two percent delta-9 tetrahydrocannabinol on a dry weight
32basis.
33d. The licensee is participating in or has successfully
34completed the negligent violation program that applies to the
35licensee’s crop site described in paragraph “c”.
-3- 14. a. It is an affirmative defense to a prosecution for
2manufacturing, producing, acquiring, purchasing, possessing,
3distributing, or offering for sale an item derived from or made
4by processing the plant cannabis that the product meets the
5definition of a hemp product as defined in section 204.2.
6b. It is an affirmative defense to a prosecution for
7manufacturing, selling, or consuming a consumable hemp product
8as defined in section 204.2 that the consumable hemp product
9was manufactured, sold, or consumed in compliance with section
10204.7, subsection 8.
11EXPLANATION
12The inclusion of this explanation does not constitute agreement with
13the explanation’s substance by the members of the general assembly.
14GENERAL. This bill relates to criminal offenses involving
15hemp, which is a type of cannabis (sativa L.) plant that
16meets the legal threshold of having a maximum delta-9
17tetrahydrocannabinol (THC) concentration of not more than
18three-tenths of one percent. Specifically, the bill provides
19an affirmative defense may be pled and proven by a person
20accused of committing the criminal offense, based on the
21defendant’s compliance with certain requirements associated
22with the legal production of hemp as provided in the Iowa
23hemp Act (IHA) codified in Code chapter 204. This includes
24having obtained a number of documents including a license to
25produce hemp (Code section 204.4), a certificate of analysis
26testing the hemp’s THC concentration, a temporary harvest and
27transportation permit, and a bill of lading when transporting
28hemp (Code section 204.7(5)). A person other than a licensee
29may also plead and prove an affirmative defense if the person
30is authorized to be on the licensee’s crop site by the licensee
31(Code section 204.7(6)). For certain prosecutions, the
32affirmative defense must include participation in the negligent
33violation program in which a qualified person required to be
34licensed by the department of agriculture and land stewardship
35(DALS) is not subject to criminal liability by complying with a
-4-1corrective plan approved by DALS (Code section 204.15). The
2licensee cannot participate in the program if the results of
3a test of the licensee’s crop exceeds 2 percent THC. The
4affirmative defense may also be pled and proven for a criminal
5offense involving an item derived from or made by processing
6the plant cannabis. In that case it must be proven that the
7item qualifies as a hemp product, meaning that it meets the
8minimum legal threshold (Code section 204.2(11)). If the hemp
9product is a consumable hemp product, an additional burden
10is placed on the defendant to plead and prove that the item
11was manufactured in this state, it derives from hemp, was
12produced in compliance with Code chapter 204, it complies with
13packaging and labeling requirements adopted by the department
14of inspections and appeals, and the manufacturer is registered
15with the department of inspections and appeals (Code section
16204.7(8)). The affirmative defense applies to prosecutions
17brought under Code chapter 124 regulating controlled substances
18and Code chapter 453B imposing an excise tax on the unlawful
19possession and dealing of certain substances.
20BACKGROUND — IOWA HEMP ACT. DALS administers and
21enforces the IHA in cooperation with the department of public
22safety (Code section 204.3). Regulation of hemp products is
23administered and enforced by the department of inspections and
24appeals (Code section 204.7). The original law included a
25number of coordinating provisions, including amendments that
26removed hemp from the list of schedule I controlled substances
27(Code chapter 124) and eliminated the associated excise tax
28imposed on controlled substances (Code chapter 453B). The
29law was amended last year, which in part changed compliance
30requirements (2020 Iowa Acts, chapters 1065 and 1121).
31CRIMINAL PENALTIES. A number of criminal penalties apply to
32a criminal conviction involving cannabis, including possession,
33manufacture, and distribution. These include a serious and
34aggravated misdemeanor (Code sections 124.401 and 124.410) and
35class “D”, class “C”, and class “B” felonies (Code sections
-5-1124.401, 124.410, and 453B.12). A serious misdemeanor is
2punishable by confinement for no more than one year and a fine
3of at least $430 but not more than $2,560. An aggravated
4misdemeanor is punishable by confinement for no more than two
5years and a fine of at least $855 but not more than $8,540. A
6class “D” felony is punishable by confinement for no more than
7five years and a fine of at least $1,025 but not more than
8$10,245. A class “C” felony is punishable by confinement for
9no more than 10 years and a fine of at least $1,370 but not
10more than $13,660. And a class “B” felony is punishable by
11confinement for no more than 25 years.
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2creating an affirmative defense in cases of criminal
3prosecution, and making penalties applicable.
4BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. Section 124.204, subsection 7, Code 2021, is
2amended to read as follows:
37. Exclusions. Schedule I does not consist of the plant
4cannabis if it is any of the following:
5a. Hemp as defined in section 204.2 that is or was produced
6in this state, or was produced in another state, in accordance
7with the provisions of chapter 204 with a maximum delta-9
8tetrahydrocannabinol concentration that does not exceed
9three-tenths of one percent on a dry weight basis.
10b. A hemp product as provided in chapter 204 with a maximum
11delta-9 tetrahydrocannabinol concentration that does not exceed
12three-tenths of one percent on a dry weight basis defined in
13section 204.2.
14 Sec. 2. Section 124.401, subsection 6, unnumbered paragraph
151, Code 2021, is amended to read as follows:
16Notwithstanding any other provision in this section to
17the contrary, and subject to section 124.401G, a person may
18produce, possess, use, harvest, handle, manufacture, market,
19transport, deliver, or distribute any of the following:
20 Sec. 3. Section 124.401G, Code 2021, is amended to read as
21follows:
22124.401G Iowa hemp Act — negligent violation program
23 compliance — affirmative defenses.
241. Notwithstanding any provision of this chapter to the
25contrary, a person shall not be guilty of an offense under
26this chapter, including under section 124.401 or 124.410, for
27 if the person proves by a preponderance of the evidence an
28affirmative defense of compliance with chapter 204 as provided
29in an applicable subsection of this section.
302. It is an affirmative defense to a prosecution
31for producing, possessing, using, harvesting, handling,
32manufacturing, marketing, transporting, delivering, or
33distributing the plant cannabis that the person complied with
34section 204.7, subsection 5 or 6.
353. It is an affirmative defense to a prosecution
-1-1forproducing, possessing, using, harvesting, handling,
2manufacturing, marketing, transporting, delivering, or
3distributing the plant cannabis pursuant to the results of a
4test conducted pursuant to section 204.8, if that all of the
5following apply:
61. a. The person holds a valid hemp license issued is a
7licensee under the negligent violation program administered by
8the department of agriculture and land stewardship as provided
9in chapter 204 section 204.15.
102. b. The plant is or was produced on the licensee’s crop
11site as provided in chapter 204.
123. c. The offense arises out of a test of a sample of
13plants that are part of a crop produced on the licensee’s crop
14site and the test indicates that the sample does not qualify
15as hemp under section 204.8 and does not exceed a maximum
16concentration of two percent delta-9 tetrahydrocannabinol on a
17dry weight basis.
184. d. The licensee is participating in or has successfully
19completed the negligent violation program that applies to the
20licensee’s crop site described in subsection 3 if such program
21is established by the department of agriculture and land
22stewardship pursuant to section 204.15 paragraph “c”.
234. a. It is an affirmative defense to a prosecution for
24possessing, using, handling, manufacturing, selling, marketing,
25transporting, delivering, or distributing an item derived from
26or made by processing the plant cannabis that the product meets
27the definition of a hemp product as defined in section 204.2.
28b. It is an affirmative defense to a prosecution for
29manufacturing, selling, or consuming a consumable hemp product
30as defined in section 204.2 that the consumable hemp product
31was manufactured, sold, or consumed in compliance with section
32204.7, subsection 8.
33 Sec. 4. Section 453B.5, Code 2021, is amended to read as
34follows:
35453B.5 Defense or immunity.
-2- 1This Except as provided in section 453B.18, this chapter
2does not provide in any manner a defense or affirmative defense
3to or immunity for a dealer from criminal prosecution pursuant
4to Iowa law.
5 Sec. 5. Section 453B.18, Code 2021, is amended by striking
6the section and inserting in lieu thereof the following:
7453B.18 Iowa hemp Act — affirmative defense.
81. Notwithstanding any provision of this chapter to the
9contrary, a person shall not be guilty of an offense under
10this chapter if the person proves by a preponderance of the
11evidence an affirmative defense of compliance with chapter 204
12as provided in an applicable subsection of this section.
132. It is an affirmative defense to a prosecution for
14manufacturing, producing, acquiring, purchasing, possessing,
15distributing, or offering for sale the plant cannabis that the
16person complied with section 204.7, subsection 5 or 6.
173. It is an affirmative defense to a prosecution for
18producing, possessing, using, harvesting, handling, or
19distributing the plant cannabis pursuant to the results of
20a test conducted pursuant to section 204.8 that all of the
21following apply:
22a. The person is a licensee under the negligent violation
23program administered by the department of agriculture and land
24stewardship as provided in section 204.15.
25b. The plant is or was produced on the licensee’s crop site
26as provided in chapter 204.
27c. The offense arises out of a test of a sample of plants
28that are part of a crop produced on the licensee’s crop site
29and the test indicates that the sample does not qualify as hemp
30under section 204.8 and does not exceed a maximum concentration
31of two percent delta-9 tetrahydrocannabinol on a dry weight
32basis.
33d. The licensee is participating in or has successfully
34completed the negligent violation program that applies to the
35licensee’s crop site described in paragraph “c”.
-3- 14. a. It is an affirmative defense to a prosecution for
2manufacturing, producing, acquiring, purchasing, possessing,
3distributing, or offering for sale an item derived from or made
4by processing the plant cannabis that the product meets the
5definition of a hemp product as defined in section 204.2.
6b. It is an affirmative defense to a prosecution for
7manufacturing, selling, or consuming a consumable hemp product
8as defined in section 204.2 that the consumable hemp product
9was manufactured, sold, or consumed in compliance with section
10204.7, subsection 8.
11EXPLANATION
12The inclusion of this explanation does not constitute agreement with
13the explanation’s substance by the members of the general assembly.
14GENERAL. This bill relates to criminal offenses involving
15hemp, which is a type of cannabis (sativa L.) plant that
16meets the legal threshold of having a maximum delta-9
17tetrahydrocannabinol (THC) concentration of not more than
18three-tenths of one percent. Specifically, the bill provides
19an affirmative defense may be pled and proven by a person
20accused of committing the criminal offense, based on the
21defendant’s compliance with certain requirements associated
22with the legal production of hemp as provided in the Iowa
23hemp Act (IHA) codified in Code chapter 204. This includes
24having obtained a number of documents including a license to
25produce hemp (Code section 204.4), a certificate of analysis
26testing the hemp’s THC concentration, a temporary harvest and
27transportation permit, and a bill of lading when transporting
28hemp (Code section 204.7(5)). A person other than a licensee
29may also plead and prove an affirmative defense if the person
30is authorized to be on the licensee’s crop site by the licensee
31(Code section 204.7(6)). For certain prosecutions, the
32affirmative defense must include participation in the negligent
33violation program in which a qualified person required to be
34licensed by the department of agriculture and land stewardship
35(DALS) is not subject to criminal liability by complying with a
-4-1corrective plan approved by DALS (Code section 204.15). The
2licensee cannot participate in the program if the results of
3a test of the licensee’s crop exceeds 2 percent THC. The
4affirmative defense may also be pled and proven for a criminal
5offense involving an item derived from or made by processing
6the plant cannabis. In that case it must be proven that the
7item qualifies as a hemp product, meaning that it meets the
8minimum legal threshold (Code section 204.2(11)). If the hemp
9product is a consumable hemp product, an additional burden
10is placed on the defendant to plead and prove that the item
11was manufactured in this state, it derives from hemp, was
12produced in compliance with Code chapter 204, it complies with
13packaging and labeling requirements adopted by the department
14of inspections and appeals, and the manufacturer is registered
15with the department of inspections and appeals (Code section
16204.7(8)). The affirmative defense applies to prosecutions
17brought under Code chapter 124 regulating controlled substances
18and Code chapter 453B imposing an excise tax on the unlawful
19possession and dealing of certain substances.
20BACKGROUND — IOWA HEMP ACT. DALS administers and
21enforces the IHA in cooperation with the department of public
22safety (Code section 204.3). Regulation of hemp products is
23administered and enforced by the department of inspections and
24appeals (Code section 204.7). The original law included a
25number of coordinating provisions, including amendments that
26removed hemp from the list of schedule I controlled substances
27(Code chapter 124) and eliminated the associated excise tax
28imposed on controlled substances (Code chapter 453B). The
29law was amended last year, which in part changed compliance
30requirements (2020 Iowa Acts, chapters 1065 and 1121).
31CRIMINAL PENALTIES. A number of criminal penalties apply to
32a criminal conviction involving cannabis, including possession,
33manufacture, and distribution. These include a serious and
34aggravated misdemeanor (Code sections 124.401 and 124.410) and
35class “D”, class “C”, and class “B” felonies (Code sections
-5-1124.401, 124.410, and 453B.12). A serious misdemeanor is
2punishable by confinement for no more than one year and a fine
3of at least $430 but not more than $2,560. An aggravated
4misdemeanor is punishable by confinement for no more than two
5years and a fine of at least $855 but not more than $8,540. A
6class “D” felony is punishable by confinement for no more than
7five years and a fine of at least $1,025 but not more than
8$10,245. A class “C” felony is punishable by confinement for
9no more than 10 years and a fine of at least $1,370 but not
10more than $13,660. And a class “B” felony is punishable by
11confinement for no more than 25 years.
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