FRANKFORT — Attorney General Jack Conway issued an advisory opinion Thursday saying that if the federal government legalizes hemp, Kentucky can grow it.
The opinion, requested by House Speaker Greg Stumbo, D-Prestonsburg, said that if "industrial hemp is exempted from the Controlled Substances Act, KRS 260.865 mandates adopting those changes."
Conway was careful to say that his advisory opinion "is not intended to serve as a constitutional or policy analysis of Senate Bill 50," which he said had been developed by the Kentucky Industrial Hemp Commission.
He said that "recent research has suggested that hemp might be an economically viable product in the state if the federal restrictions are lifted," but that all previous efforts have died in Congress.
Conway said that if federal law is changed but no federal regulatory framework is set up, "industrial hemp would be essentially unregulated in Kentucky after the mandatory adoption of the federal definition."
SB 50 — the hemp bill that the Senate passed 31-6 but that is being blocked in the House by Stumbo — would set up a licensing program for Kentucky farmers.
The bill includes restrictions to address concerns voiced by Kentucky State Police about marijuana:
■ Farmers would have to say where and how much they planned to grow and who they sold it to.
■ Plants could be tested to verify levels of the drug THC below 0.3 percent by the Kentucky Department of Agriculture and law enforcement.
■ No one could use the "hemp defense," because drivers would be required to carry a state hemp license while transporting any part of the crops. Essentially, without a license, whatever is in a vehicle isn't legal hemp.
On Thursday morning, Stumbo defended his blocking of the hemp bill, saying there is no need to rush because state law must mirror federal law. He contended that the hemp bill would set up an unnecessary bureaucracy.
"If the federal government authorizes the growing of hemp, Kentucky's law that's already in place allows us to grow hemp immediately," Stumbo said.
Later, Stumbo said Conway's opinion reaffirms his position that Kentucky does not have to pass separate legislation to legalize the growing of hemp.
"They are never going to pass it without a regulatory framework," Stumbo said of the federal government.
Stumbo stopped short of saying SB 50 was dead.
"There are some problems with the bill," he said, echoing other concerns that police should have more oversight of the crop. State police and other narcotics officers have been critical of the bill. Those concerns still need to be addressed, he said Thursday.
Agriculture Commissioner James Comer, who has lobbied for the bill, disagreed.
"If Speaker Stumbo truly shares law enforcement's concerns, he will pass SB 50 right now," Comer said. "Without it, achieving a waiver from the federal government to be the first state to grow hemp will be almost impossible, because there will be no safeguards in place. Other states have already passed similar programs. If we don't act now, Speaker Stumbo will kill our chances to be first for these jobs."
Passing the framework was meant to be a big bargaining tool for the state to persuade federal authorities to grant Kentucky a waiver to grow hemp as a sort of pilot project and attract buyers and processors, advocates said.
"It's a very important part of bolstering the case for agricultural hemp. I think it helps the case by showing the support at the state level," said Stephen George, spokesman for U.S. Rep. John Yarmuth, D-Louisville.
If Kentucky applies for the waiver, Yarmuth and U.S. Sen. Rand Paul, R-Bowling Green, have said they will support it.
Yarmuth testified last month in Frankfort on behalf of SB 50, alongside Paul and U.S. Rep. Thomas Massie, R-Vanceburg.
All are sponsoring, along with U.S. Sen. Mitch McConnell, R-Louisville, the Industrial Hemp Farming Act, a federal bill to distinguish between hemp and marijuana.
Members of Kentucky's congressional delegation said they will continue to push to change drug laws to allow hemp production.
"The ideal scenario would be that the congressman's legislation ... would legalize the production of hemp at the federal level, and Kentucky would have a framework already in place so it can begin to take advantage of it immediately," said George, Yarmuth's spokesman. He said he knows of no specific plans for a federal framework.
Tom Murphy, national outreach coordinator for Vote Hemp, agreed that if SB 50 dies, Kentucky's chances of being among the first to grow hemp might be jeopardized by that lack of a framework.
Several states have passed or are considering pro-hemp laws, but only North Dakota has passed regulations and issued state licenses, Murphy said.
Maine, Vermont and Oregon already have hemp farming laws but haven't promulgated administrative rules yet, Murphy said.
"This is going to happen with or without Kentucky," Murphy said.