The U.S. Department of Agriculture (USDA) and Drug Enforcement Administration (DEA) reached an agreement that drops the provision in USDA’s Interim Hemp Rule that required hemp growers to test the tetrahydrocannabinol (THC) levels of their crops at a DEA-certified laboratory. The requirement was one of a few major points of contention for the hemp industry in the Interim Hemp Rule because there were fewer than 50 such laboratories in the U.S., and growers were required to sample and harvest their crops in a tight, 15-day window.
Under the new guidance, USDA will delay enforcement of the requirement for labs to be registered by DEA and the requirement that producers use a DEA-registered reverse distributor or law enforcement to dispose of non-compliant plants under certain circumstances. Enforcement will be delayed starting this crop year and until Oct. 31, 2021, or until the final rule is published, whichever comes first.
“Because currently there isn’t sufficient capacity in the United States for the testing and disposal of non-compliant hemp plants, USDA has worked hard to enable flexibility in the requirements in the interim final rule for those issues,” USDA undersecretary for marketing and regulatory programs Greg Ibach said.
Laboratory testing for the purposes of determining compliance under the U.S. Domestic Hemp Production Program can be conducted by labs that are not yet registered with DEA. The laboratories must still meet all the other requirements in the interim final rule.
Without the requirement to have the hemp tested at a DEA-certified laboratory, growers will now be able to use state and local labs, as they have done for previous crop years. States that already had their hemp plans approved by USDA often require that the labs be approved by a state agricultural agency, so some hurdles may still remain for laboratories that wish to begin testing hemp crops for THC content, but this is overall a boost for the hemp industry going into the 2020 growing season.
All laboratories engaged in the testing of hemp through this interim period will be subject to the same compliance requirements of the interim final rule. Specifically, labs must adhere to the standards of performance as outlined within the rule, including the requirement to test for total THC employing post-decarboxylation or other similarly reliable methods. All labs will have to make arrangements to be compliant with registration requirements before this period of delayed enforcement expires. DEA will evaluate all applications using the criteria required by the Controlled Substances Act (21 U.S.C. 823(f)).
Based on feedback from states and tribes, and in consultation with DEA, USDA has identified additional options for the disposal of “hot” hemp plants. Some of these new options include, but are not limited to, plowing under non-compliant plants or composting into “green manure” for use on the same land. The new methods are intended to allow producers to apply common on-farm practices for the destruction of non-compliant plants.
Hemp that tests greater than 0.3% THC on a dry weight basis must be disposed of on site according to the disposal methods approved by USDA. The state, tribe or state department of agriculture will be responsible for establishing protocols and procedures to ensure that non-compliant hemp is appropriately destroyed or remediated in compliance with applicable state, tribal and federal laws.
A list of allowed disposal techniques and descriptions is available on the U.S. Domestic Hemp Production Program webpage.
“One of the top considerations in making these changes was the desire to provide additional options that minimize, to the extent possible, the resource impact to state and local law enforcement in handling hemp that is out of compliance,” Ibach said.
“We look forward to partnering with producers, states, tribes and other stakeholders to deliver regulations that work for everyone,” Ibach added.
USDA received thousands of comments about its Interim Hemp Rule, and certain provisions are likely to continue to cause difficulties for the industry, such as requiring THC testing to occur post-decarboxylation. Nevertheless, USDA has committed to opening another public comment session in the fall of 2020 to gather more input from the industry on the 2020 season.