Sonoma County’s Draft Industrial Hemp Ordinance: Thoughts and Takeaways

Sonoma County has released a draft industrial hemp ordinance, which, if passed, will lift the moratorium on hemp cultivation in the county. This is great news for the County. With wine grapes only fetching, on average, $3,000 per ton, the increasing popularity of plant-based milks (e.g., almond milk) and resulting dip in dairy sales, and the continued decline of local apple processors, hemp could be a much-welcomed cash crop for farmers in Sonoma County. As a relatively new crop for California, industrial hemp has yet to be commoditized and thus still enjoys a relatively high farm gate value. According to the U.S. Department of Agriculture (USDA) prices for hemp flower range from $3.50 to $30.00 per pound or more.

Thanks, in part, to its dry summers and falls (ideal for outdoor hemp flower cultivation—in Oregon, September rain caused the destruction of many acres from the resultant mold damage), hemp grown in Sonoma County is likely to command high prices. If regulated improperly, however, Sonoma County will continue to lag behind other counties in hemp cultivation and production. While the draft hemp ordinance is undoubtedly a step in the right direction, it is nevertheless flawed. The following issues must be redressed to ensure that farmers in Sonoma County can truly benefit by cultivating industrial hemp:

Issue # 1 – Removal or Destruction of Industrial Hemp Prior to Harvest.

Sec. 37-9 Removal or Destruction of Industrial Hemp Prior to Harvest.

A. Destruction Plan Required. If industrial hemp is removed or destroyed prior to harvest for any purpose, registrant must submit a destruction plan to the Agricultural Commissioner. A destruction plan is not required for industrial hemp removal or destruction at an institution of higher education’s registered site.

B. Destruction Plan Contents. A destruction plan must include all information required by state industrial hemps, and any other information required by the Agricultural Commissioner to ensure compliance with this chapter, including, but not limited to photographs, test results, reports, etc.

C. Review and Approval. Except as allowed by Section 37-8(B)(ii), no industrial hemp plant may be removed prior to the Agricultural Commissioner’s review and approval of the destruction plan. An inspection prior to and/or following removal and/or destruction, or other verification of compliance with an approved destruction plan, may be required at the discretion of the Agricultural Commissioner.

Section 37-9, Sonoma County DRAFT Industrial Hemp Ordinance 10.17.19

Under Section 37-9 of the draft industrial hemp ordinance, farmers in Sonoma County are required prior to harvest to submit a destruction plan to the Agricultural Commissioner before removing any non-male plants (male plants may be removed without a destruction plan, but as written this exemption does not cover hermaphroditic plants which also produce pollen). 

This is a serious problem for several reasons. First, there are oft-recurring situations in which farmers must quickly destroy a plant, including pest mitigation and pollen management. Requiring farmers to draft, finalize, and submit a destruction plan to the Agricultural Commissioner and then wait for the plan to be evaluated and approved all the while pathogen spreads and, or pollen multiplies is potentially ruinous for farmers. No federal or state rules contain such a process. Why require it here? Farmers are already fully incentivized to destroy plants that could jeopardize their harvest, including hot plants (i.e., plants that contain a THC concentration over 0.3%). Requiring farmers to wait for approval before they can destroy a plant is unnecessary, and, worse, imperils entire harvests.

Issue # 2 – Pollen Management 

Inspections and Removal. A registrant must conduct regular inspections of outdoor cultivation area(s) to ensure no male industrial hemp plants are growing outdoors. If a male industrial hemp plant is growing outdoors, the registrant must remove the male industrial hemp plant and submit a destruction plan to the Agricultural Commissioner, in compliance with section 37-9, within 24 hours of when the registrant knew or should have known of such occurrence.

Section 37-8(B)(ii), Sonoma County DRAFT Industrial Hemp Ordinance 10.17.19

Under Section 37-8(B)(ii), registered hemp farmers are required to conduct regular inspections of their field, remove male plants, and submit a destruction plan within 24 hours of when the farmer knew or “should have known of such occurrence.” This section is especially problematic because even so-called “feminized” seeds often include males, and female plants under environmental stress may turn hermaphroditic and produce pollen. Pulling out male or hermaphroditic plants is often a daily exercise for hemp farmers and a majority of hemp farmers (excluding those cultivating hemp for fiber or seed) are already incentivized to destroy male plants. Placing extra regulatory burdens on farmers and subjecting them to the added liability of being considered a public nuisance does more harm than good and would affect almost every farmer even those that plant “feminized” seed. 

Violation. A male industrial hemp plant growing outdoors may be considered a violation of this chapter and a public nuisance.

Section 37-8(B)(iii), Sonoma County DRAFT Industrial Hemp Ordinance 10.17.19

Additionally, the “Pollen Management” section fails to include hermaphroditic plants, which also produce pollen. Lastly, Section 37-8(B)(iii) makes any occurrence of a male plant growing outdoors a violation and a public nuisance, but does not state a minimum amount of time. Is 12 hours a violation, even though the plant was destroyed within the required 24 hours? Under Section 37-8(B)(iii) it may be. Setting a minimum amount of time would add clarity to this section of the ordinance.

If you are interested in industrial hemp cultivation in Sonoma County, and would like to learn more or are concerned about this draft ordinance, please contact the hemp industry lawyers at Rogoway Law Firm.

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