Breaking Down The USDA's New Hemp Regulations

Hemp and marijuana are often lumped together in the national conversation about cannabis. They are the same plant after all Cannabis sativa L

But the distinction between the two for farmers can mean the difference between a legal, multimillion-dollar cash crop and having to burn acres of cannabis plants that contain too much of the chemical that gets people high.

That’s why the Trump Agriculture Department rolled out a detailed list of regulations Tuesday aimed at clarifying some of the mass confusion surrounding hemp. The Agriculture Department will accept public comments on the proposal for 60 days. The regulations contain both good and bad news for farmers concerned with crops that don't measure up.

Lawmakers including Senate Majority Leader Mitch McConnell and Sen. Ron Wyden (D-Ore.) praised the department for releasing the draft regulations in time for the 2020 growing season. Both lawmakers represent farmers hoping to take advantage of the lucrative CBD industry, which is projected to be worth $20 billion by 2024.

“The USDA interim rule is an important first step to ending uncertainty for farmers,” Wyden said in a statement.

Though the rules clear up some uncertainties, they do not address the concerns surrounding the booming hemp-derived CBD market in food and supplements.

Testing for THC

Under the farm bill passed last year, THC levels in hemp can’t rise above 0.3 percent. The rules recognize that hemp farmers can unwittingly test over this limit despite their good-faith efforts to produce plants that comply with federal law.

The proposal gives farmers some wiggle room if their crops test “hot.” For example, if test results from a Drug Enforcement Administration-certified laboratory show the plant contains THC levels slightly above 0.3 percent, but still fall within a certain margin of error, the hemp harvest will be approved by the department.

The Agriculture Department, however, did not establish a single, uniform testing standard that states must use when telling growers how to examine THC in their crop — allowing the patchwork of state regulations now governing hemp production to continue. This is likely not going to please hemp producers, who were hoping for uniform testing standards.

THC levels must be sampled 15 days before harvest, and USDA will accept multiple types of testing methods employed by states across the country. The department will also accept “alternative testing and sampling protocols” that produce similar results.

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When it comes to sampling the plant for testing, the USDA wants to sample the flowers only. These are the most cannabinoid-rich parts of the plant, and will contain the highest concentrations of THC. Producers are required to pay any fees associated with sampling for testing.

“Testing will be conducted using post-decarboxylation,” the proposed regulations say. This means that the non-psychoactive acid form of THC, known as THC-A, will be included in the 0.3 percent cut-off.

The draft regulations do not address testing for contaminants, like pesticides.

Dealing with 'hot' crops

The USDA’s rules would require hemp farmers to destroy crops with high THC levels because the plants would be considered marijuana under federal drug laws. The hot hemp would have to be collected for destruction by someone authorized to handle a Schedule I controlled substance — which are drugs, including marijuana, illegal under federal law.

The industry was hoping the federal guidelines would allow them to make use of non-compliant hemp in a useful way, like composting. But it appears federal drug laws do not allow for this.

The plants could be used for something else, including as an addition to soil, composting or products that won't be used for human or animal consumption, said Joy Beckerman, president of the Hemp Industries Association and executive vice president of the U.S. Hemp Roundtable.

Seeds

States have developed their own seed certification programs thanks to the 2014 farm bill, which set up hemp pilot and research programs. The USDA will not include a federal seed certification program, recognizing that weather conditions can have a big impact on THC levels.

“The same seed used in one state to produce hemp plants with THC concentrations less than 0.3% can produce hemp plants with THC concentrations of more than 0.3% when planted in a different State,” the proposal reads.

Interstate transportation

The department was clear on one issue that has roiled the hemp industry: Interstate transportation of hemp is allowed, even if the hemp shipment passes through a state that forbids growing of the crop.

Idaho made headlines earlier this year when a truckload of hemp being transported from Oregon to Colorado was seized within the state. Officials reasoned that because Idaho does not have a hemp program, the crop cannot legally be present.

Patchwork of state regulation

The USDA will allow hemp pilot projects under the 2014 farm bill to continue through the 2020 planting season. But after the new rules go into effect sometime next year, the extension of the 2014 farm bill rules will expire a year from then.

The USDA will maintain the ban on those with felony drug convictions within the past 10 years from participating in the hemp industry, with an exception for people already operating 2014 farm bill-compliant hemp operations.

Data collection

USDA plans to maintain records of hemp production, which will finally answer the question of exactly how many acres of hemp have been planted across the country. Licensed producers must report their crop production to the Farm Service Agency.

Sources

Crampton and .Zhang. “Breaking Down The USDA’s New Hemp Regulations" https://www.cdaweb.net/Portals/0/Education/Cannabis%20Newsletter/Breaking_down_the_USDA_s_new_hemp_regulations_-_POLITICO_PRO.pdf Accessed 31 October 2019.