Daily Independent (Ashland, KY)

September 29, 2013

Conway v. Comer

Growing industrial hemp is still a risky business in Kentucky

The Independent

ASHLAND — The disagreement between Kentucky Attorney General Jack Conway and state Agriculture Commissioner James Comer over the status of industrial hemp in Kentucky could be as much about the 2015 governor’s race as it is about whether farmers in the state can grow a crop still banned by federal law without fear of prosecution.

According to Conway, who as attorney general is the state’s chief law enforcement officer, growing industrial hemp remains a violation of federal law, and Kentucky farmers who ignore that law might subject themselves to potential criminal liability. Until Congress lifts the ban on industrial hemp, Conway’s advice to farmers is to not plant the crop that was once a major cash crop in Kentucky and many believe could be again.

But Comer, a Monroe County farmer and member of the Kentucky House of Representatives before being elected state agriculture commissioner, is encouraging farmers to not wait for a change in the federal law before planting industrial hemp.

As Comer sees it, a law approved by the 2013 General Assembly has made industrial hemp legal in Kentucky, adding that  “the federal government has made it clear that it is not going to prosecute farmers for growing hemp. It makes no sense that Attorney General Conway would throw up an unnecessary government obstacle to an industry that has the potential to create jobs and revenue for Kentucky.”

 Although the 2015 gubernatorial race still is many months in the future, Conway, a Democrat, and Comer, a Republican, must be considered the early favorites for their party’s nomination for governor. Conway quickly recovered politically from losing to Rand Paul in the 2010 race for the U.S. Senate by easily winning a second term as attorney general a year later. Other than governor Steve Beshear, who can’t seek re-election, Conway likely is the best known Democrat in the state.

Comer is the only Republican elected to a state constitutional office in 2011, and he has made headlines by quickly and aggressively cleaning up the mess created by his Republican predecessor, former UK basketball star Richie Farmer, and by being an outspoken advocate of legalizing industrial hemp.

Comer cited a recent “prosecutorial guidance” by the federal Department of Justice telling federal prosecutors not to pursue criminal charges against small possessions of marijuana in states which have legalized the drug, in saying state farmers need not wait until the federal ban is lifted to plant their hemp crops. Comer and an attorney for the Department of Agriculture, Luke Morgan, contend the “prosecutorial guidance” means the federal government also won’t prosecute cultivation of hemp. Comer and Morgan also cite a 2003 federal Drug Enforcement Agency memorandum that says hemp is not marijuana and not covered by the Controlled Substances Act.

Conway disputes their interpretation, however. “The 2003 memorandum and regulation by DEA deals with hemp products,” Conway said. “But it makes it very, very clear that the cultivation of hemp remains illegal.”

Conway issued his opinion in response to a request from the Kentucky State Police and Gov. Steve Beshear. The governor issued the following statement after Conway’s announcement:

“The Attorney General’s interpretation of the federal law is consistent with our understanding. It’s clear that a formal change in the federal law is needed before our farm families can reasonably consider growing this crop. Our new state law means Kentucky farmers are positioned to respond immediately when and if that change occurs, putting them ahead of other states without similar legislation.”

While this newspaper supports lifting the federal ban on industrial hemp, we agree with Conway. Growing industrial hemp is against federal law and federal laws take precedence over state laws. There are a number of laws on the books with which we disagree, but we obey them because we don’t think anyone has the right to pick and choose which laws they will obey. To do so can only lead to confusion and increase disrespect for the law.

Conway stopped short of saying that he would actively prosecute Kentucky farmers for growing industrial hemp, but his warning makes growing hemp rather risky in this state.

The solution is for Congress to lift the ban on industrial hemp. That way there will be no question that the crop is legal, and the marketplace will determine the true value of industrial hemp. That’s as it should be.