Whether the government must prove that a substance is marijuana and not hemp as an element of a possession with intent to distribute offense, or whether hemp is an exception that the defendant must establish

QUESTION PRESENTED In 2018, the President signed into law the Agriculture Improvement Act, colloquially called the Farm Bill. The Farm Bill amended the Controlled Substances Act to exclude hemp from the definition of marijuana. See Pub. L. 115-334, 132 Stat. 4490. With the passage of the Farm Bill, the Controlled Substances Act provided: (16)(A) Subject to subparagraph (B), the term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. (B) The term “marihuana” does not include— (i) hemp, as defined in section 16390 of Title 7; or (ii) the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, of preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination. 21 U.S.C. § 802(16). In turn, Hemp is defined as: the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 [THC] concentration of not more than 0.3 percent on a dry weight basis TUS.C. § 16390(1). The question presented is: 1. Whether, in a possession of marijuana with intent to distribute prosecution, the government is required to prove as an element that the substance is marijuana and not hemp, or whether hemp constitutes an exception to marijuana offenses that the defendant is required to put forth evidence to establish.