Potential Issues With Testing Hemp Under The 2018 Farm Bill – Lexology

On October 31, 2019, USDA published its interim hemp regulations and opened them up to a 60-day public commenting period. While the 2018 Farm Bill legalized hemp federally, USDA’s regulations highlight potential issues for hemp producers with regard to new testing requirements in state or tribal plans. More specifically, the requirement that a state or tribal plan have “a procedure for testing, using post-decarboxylation or other similarly reliable methods, delta-9 tetrahydrocannabinol concentration” has become a great concern.

Among the hundreds of cannabinoids contained in cannabis, THC (delta-9 tetrahydrocannabinol) has been the focal point for testing because of its psychoactive properties. However, cannabis also contains THC-A (tetrahytrocannabinolic acid) which, by itself, is not psychoactive. Only through the process of decarboxylation does THC-A become THC.

With that primer, it becomes imperative to understand the definition of hemp under the 2014 Farm Bill. Under the 2014 Farm Bill, industrial hemp was defined as “the plant Cannabis sativa L. and any part of such plan, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” State industrial hemp research programs authorized under the 2014 Farm Bill used similar wording for establishing state definitions of industrial hemp. To date, only three states remain without some form of hemp program in place.

In an effort to shed light on the implications arising from the 2018 Farm Bill testing requirement, we need to point out that most hemp tested under the 2014 Farm Bill only considered delta-9 THC to determine the threshold .3% THC. Depending on the laboratory issuing the certificate of analysis, the amount of THC-A may or may not have been provided. Certain certificates of analysis show THC-A concentrations ranging from .4 to .75 % on a dry weigh basis. In order to calculate the post-decarboxylated percentage of THC, the following equation is used:

Total THC = THC + (0.877* THC-A).

The issue with post-decarboxylation testing is that hemp authorized under 2014 Farm Bill testing may actually test higher than the .3% of total THC tested under the 2018 Farm Bill. As a result, this hemp requires destruction because it legally falls under the definition of marijuana. To be clear, marijuana remains a Schedule I controlled substance. That being said, because of the change in testing for THC, hemp farmers cultivating under the research programs of the 2014 Farm Bill may actually be growing marijuana under the 2018 Farm Bill. In this scenario, farmers may risk losing their entire crops. For example, California law enforcement officials bulldozed hemp fields in Kern County last month for testing above .3% THC.

Following release of USDA’s hemp regulations detailing requirements for state and tribal plans, this issue has become clearer. A quick review of the comments submitted to the USDA shows that many industry participants are becoming more and more concerned with this testing requirement and its implications on their hemp crops.

By requiring hemp to be tested using post-decarboxylation, USDA regulations potentially create greater risk and liability for hemp businesses that have been operating in compliance for years under 2014 Farm Bill research programs. For hemp businesses concerned with USDA testing requirements, or any other aspect of USDA’s regulations, it is imperative to submit comments during the agency’s public commenting period. Doing so ensures that USDA considers your support or concerns with its hemp regulations, as well as preserves the right to sue the agency based on the substance of its final rule.

The USDA is accepting comments on its hemp regulations until December 30, 2019 and prior to issuance of a final rule. Comments may be submitted online or directly to USDA. Please reach out to the Greenspoon Marder Cannabis Practice Group should you have any questions regarding USDA hemp regulations, the submission of comments, or if you would like the firm to assist in drafting comments. The attorneys at Greenspoon Marder have extensive experience participating on behalf of clients in agency rulemaking.

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