As required by the law set forth in the 2018 Farm Bill, the USDA has announced the establishment of a national regulatory framework for hemp through the release of their Interim Final Rule for hemp.
The proposed regulations will be in effect until Fall of 2021.
The USDA has opened a comment period regarding the proposed regulations and will be considering comments until December, 30 2019.
The USDA & Hemp Regulations
The regulations outline the provisions needed by the USDA to approve hemp plans submitted by the states.
They also set forth how certain procedures such as THC testing will take place.
At 161 pages, the proposed USDA regulations are a long read.
However, most of the pages in the document are dedicated to general language and how hemp production will be treated in states that do not submit their own hemp plan to the USDA.
For states that have submitted their own hemp plans to the USDA, there is still a fair amount of freedom for those states to conduct their own hemp programs.
The rules are restrictive, but they are not much different than how states currently run their hemp programs.
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There is no mention of the legality of hemp flower for states that retail hemp flower, and also no mention of the legality of processors containing extracted hemp concentrated above 0.3% THC.
At some point all CBD extract is above 0.3% until it gets diluted down, so processors currently operate under a grey area of “marijuana extract” until the extract is diluted.
No language on these two topics is good because it means there is no language against those two topics.
Under the proposed regulations, states still maintain a fair amount of freedom in running their own hemp programs.
The main thing that concerns many industry participants is THC testing.
Under the proposed regulations, the USDA requires that THC testing be conducted by a DEA licensed lab because technically labs may handle hemp that could test over the limit and be considered marijuana.
We understand why the USDA thought to add this to the regulations, but there is a possibility this could drive testing costs up.
As it stands, most states are unable to handle the testing of every hemp plot grown. There are simply not enough labs to test all the hemp.
The explosion in hemp acreage has caused a backlog at state testing facilities across the nation.
This testing provision further highlights the need for a different way to distinguish between the difference between hemp and marijuana.
The legality of hemp under the 2018 Farm Bill all hinges on THC level, specifically Delta 9 Tetrahydrocannabinol.
The difference between hemp and marijuana is nothing but a legal definition.
Delta 9 THC is not naturally produced in high amounts in the cannabis plant, it is only when it is decarboxylated or heated up that the THC-A molecule converts into delta 9 THC.
States like Kentucky already test for total THC, so this is really not much different than what most states deal with now. However, the allowable level of THC is defined as 0.3% or below.
So where some states were taking the 0.3% and allowing producers some wiggle room by allowing up to .399%, that will no longer be allowed.
Instead, it has been determined that the labs that will be doing the testing are to allow for a margin of error in the THC testing.
So if the lab determines there margin of error is +/- .20, then the top allowable THC number will be 0.5% total THC.
This could end up being even more beneficial if the margin of error exceeds the 0.399 that some states previously allowed.
The margin of error will be determined by each individual lab.
It seems the USDA left this open to hopefully allow farmers some leeway in testing their crops.
The USDA wants to see farmers succeed, and nobody wants to see farmers destroying their crops because they tested over the limit.
Ultimately, these proposed regulations are a step forward for the hemp industry. Additional legislation is needed to push the hemp industry further, yet we’re pleased to see the necessary steps to treat hemp like any other commodity.
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