On October 29, the U.S. Secretary of Agriculture Sonny Perdue announced the establishment of the U.S. Domestic Hemp Production Program. As mandated by the 2018 Farm Bill, the USDA (U.S.Department of Agriculture) was authorized to establish and administer a program for the production of hemp in the US. Following the publication of the interim final rule formalizing the program in the Federal Register on October 31, there will be a 60-day public comment period on the interim rule, and the interim rule will be in place for two years. The interim final rule provides states, indigenous tribes, and hemp cultivators guidance on hemp production including THC testing procedures prior to the 2020 planting season. This program creates a consistent regulatory framework around hemp production throughout the US and is aimed to helping expanding production and sales of domestic hemp, to benefit both US producers and consumers. More than 285,000 acres of hemp are being planted in the US in 2019, up from 78,000 acres in 2018, according to our Hemp Cultivation Landscape Report to meet growing demand for CBD products.
The interim rule includes provisions for the US Department of Agriculture (USDA) on approving the hemp production plans developed by states and indigenous peoples. With the publication of the Interim Rule, states and indigenous peoples will be able to submit their hemp production plans to the USDA for review. The interim rule lays out what the USDA is expecting to see in the hemp production plans on the areas of maintaining information on the land used for production, procedures for testing THC levels, disposal of hemp plants that exceed maximum THC levels, compliance provisions, and procedures for handling violations. After the USDA formally receives a hemp production plan from a state or indigenous tribe, the USDA will have 60 days to review the submitted plan. The number of areas where hemp can be cultivated legally is expected to grow in 2020 as the interim rule also establishes a USDA plan to regulate hemp production where hemp cultivation is legal but is not covered by an approved state or tribal plan. The USDA plan’s requirements are similar to those under state and tribal plans.
THC testing procedures is a key area covered in the interim rule. The USDA recognizes that there is variability in THC testing procedures and seeks to protect the economic interests of hemp producers while ensuring that hemp cultivators are not producing marijuana. THC testing is a big concern for hemp producers because the 2018 Farm Bill defines hemp as the plant species 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 of not more than 0.3 percent on a dry weight basis. In turn, the 2018 Farm Bill requires that cannabis plants that have a THC concentration level of greater than 0.3% on a dry weight basis be disposed of in accordance with the applicable state, tribal, or USDA plan because these plants are defined as marijuana. Due to this requirement, hemp cultivators who produce a “hot” crop will suffer economic losses after investing time and money into hemp production. To protect hemp producers from unnecessary losses, the USDA created a definition of “acceptable hemp THC level” to ensure that there is a high degree of certainty that the THC concentration level is accurately measured and is above 0.3% on a dry weight basis before requiring disposal of the crop.
This interim rule requires that laboratories calculate and report the measurement of uncertainty (MU) as part of any hemp test results. The application of the MU to the reported delta-9 THC content concentration level on a dry weight basis produces a range. If 0.3% or less is within the range, then the cannabis sample will be considered to be hemp for the purpose of compliance with the requirements of state, tribal, or USDA hemp. If a laboratory reports a result as 0.35% THC level with a measurement of uncertainty of +/- 0.06, the range is 0.29% to 0.41% THC. Since 0.3% is within that range, the sample and the lot it represents, is considered hemp for the purpose of compliance with the requirements of state, tribal, or USDA hemp plans.
State and tribal plans must establish procedures for sampling and testing hemp to ensure the cannabis grown and harvested does not exceed the acceptable hemp THC level according to the interim rule. A federal, state, local, or tribal law enforcement agency or other federal, state, or tribal designated person needs to collect samples from the flower material from the cannabis plants for delta-9 THC concentration level testing within 15 days prior to the anticipated harvest of the cannabis plants. The testing needs to be completed by a DEA-registered laboratory using post-decarboxylation or other similarly reliable analytical methods (such as gas and liquid chromatography with detection) where the total THC concentration level reported accounts for the conversion of delta-9-tetrahydrocannabinolic acid (THCA) into THC. The interim rule is requiring that laboratories be registered with the Drug Enforcement Administration. The total THC, derived from the sum of the THC and THCA content, will be determined and reported on a dry weight basis. The THC concentration of all hemp must meet the acceptable hemp THC level. The USDA states alternative sampling and testing protocols will be considered if they are comparable and similarly reliable to provide flexibility to states and indigenous peoples.