Two weeks after opening a comment period on an interim final rule on hemp farming, the U.S. Department of Agriculture has received more than 600 comments. The rule set limits for the amount of tetrahydrocannabinol (THC) that can legally be produced by the crop, and farmers have reportedly told the agency that the limit is unmanageable, according to an update from Shook, Hardy & Bacon LLC.
"One issue is that the regulations do not acknowledge a difference between Delta-9 THC and THC-A, according to a former hemp farmer interviewed by Law360 who also reportedly said he had never seen a test result as low as the limit set by USDA. Another possible issue is that the crop must be tested by a laboratory registered with the Drug Enforcement Administration (DEA), which may reduce the number of qualified firms to a single laboratory," the litigation update noted.
As authors of the legislation that legalized hemp production nationwide, Sens. Ron Wyden (D., Ore.) and Jeff Merkley (D., Ore.) requested that USDA make several changes as it develops its final rule for the U.S. Domestic Hemp Production Program.
Wyden and Merkley, in a letter to Agriculture Secretary Sonny Perdue, welcomed the interim rule recently released by USDA as a necessary step to establish a domestic federal hemp production program but cited concerns about the unintended and potentially harmful effects the rule would have on hemp production in Oregon and across the country.
“We appreciate USDA’s commitment to hemp producers across the United States and are pleased by your efforts to grow and support domestic hemp production. Farmers in Oregon and across the country are on the precipice of an agricultural boom that, with the right regulatory framework, stands to boost rural economies in every corner of the country,” the senators wrote.
In a release, the senators recommended that, based on feedback from Oregon farmers, researchers and regulators, USDA make the following accommodations:
- Follow the Oregon model and extend the timeline for testing before harvest to a more realistic timeframe, and provide a reasonable time frame for post-testing harvest, citing concerns that the proposed requirement of 15 days will be an impossible obstacle for growers to overcome.
- Remove the requirement that testing labs must be DEA registered, as hemp is a legal commodity and not subject to DEA oversight, and such requirements would also cause unnecessary delays.
- Allow testing for delta-9 THC using methods that do not involve the application of heat or decarboxylation and to remove all requirements for converting THCA into THC, as the 2018 farm bill allows for flexibility in testing methods by allowing “other similarly reliable methods.”
- Follow Oregon’s pre-harvest sampling protocol that a “sample shall be obtained from flowering tops when flowering tops are present and shall be approximately 8 in. in length,” rather than requiring a sample from the flower or bud located at the top one-third of the plant.
- Set a negligence threshold greater than 1% for THC content — if one must be set — as the interim rule’s current threshold at 0.5% is arbitrary and far too low. A reasonably prudent hemp producer could take the necessary steps and precautions to produce hemp — such as using certified seed, using seed that has reliable grown complaint plants in other parts of the country and engaging in other best practices — yet still produce hemp plants that exceed this 0.5% THC concentration.
Comments on the interim final rule will be accepted until Dec. 31.