The USDA has reopened the public comment period on its guidelines for hemp production. Some in the industry see the move as an acknowledgement by the agency that change is needed.
The USDA established its Domestic Hemp Production Program through the 2018 Farm Bill, which legalized hemp nationwide. The program includes provisions that regulate hemp testing to ensure plants don’t surpass the legal THC limit.
After receiving a reported 4,600 comments from stakeholders during the initial 90-day comment period in 2019, the agency opted to reopen the comment period Sept. 9 for feedback on its interim final ruling. The new comment period will close on Oct. 8.
“Working in good faith”
At least some in and around the industry weren’t surprised to see the discussion reopened.
Jesse Mondry, an attorney with Harris Bricken, a law firm with hemp and cannabis clients, said he considered the reopening of the comment period to be “recognition that there are issues with the interim rules.”
“I think it also shows [that federal agencies] are working in good faith and want to make rules that work for the industry,” he said. “They actually want it to grow, and taking feedback from folks in the industry is a good way to help understand what needs to be done.”
One of the major points of contention in the current set of rules is the formula used to test hemp products for “total THC.”
In order for a hemp product to be legal, it must contain a total THC level of less than 0.3%. Anything above that is considered marijuana, which the federal government classifies as a Schedule I drug.
Currently, there are two accepted methods for measuring cannabinoids in industrial hemp: gas chromatography and high-pressure liquid chromatography.
Several of the comments submitted to the USDA call for an adjustment to the formulas used to gauge THC levels under those methods, arguing they are inaccurate due to being based on conditions they say are impossible to achieve in a lab setting.
Further, some operators took issue with the cannabinoid tetrahydrocannabinolic acid, or THCA, being factored into the total THC measured by the tests, since the federal government doesn’t consider THCA illegal.
“The 0.3% Total THC mandate is a problematic interpretation and application of early cannabis science,” Patti Mayfield, CEO of Wade Creek Farm LLC in Springfield, Oregon, commented to the USDA on the first day of the comment period.
She also pointed out the finicky nature of hemp plants, noting that “even slight amounts of stress on the plants during any stage of cultivation can lead to increased levels of THC.”
“Throughout the growing season, we face concerns with irrigation issues, environmental stress like forest fire smoke, heavy winds and thunderstorms, pest and weed pressure,” she continued. “All of these factors can take a CBD producing cultivar and stress them enough to the point of testing outside of the compliant range.”
“Where does it end?”
There’s also the issue of what happens to plants that test above the limit.
Some farmers could have hundreds of thousands of dollars invested in a crop, only to see it rendered unsellable if its total THC level is found to be too high. In addition to that potential loss of investment, those growers are also possibly opening themselves up to criminal penalties due to having a plant that is classified federally as an illicit substance.
“It is now proven, in a lab, you can convert yeast and sugars into THC,” Jerrod Blaiser commented. “Is the next step for the USDA to test for sugars and yeast in the Hemp flower and add that to the ‘Total THC’ number because it can be converted to THC delta 9? Where does it end?”
The USDA comment period comes at a tense moment for the industry. A new rule from the U.S. Drug Enforcement Administration (DEA), which took effect Aug. 21, considers any extract produced in hemp manufacturing to be a controlled substance if it contains more than 0.3% THC, even if it derives from legal plants and is diluted or refined within legal limits before it reaches consumers. (Read the rule here.) While there are numerous ways to convert hemp plants into CBD products or additives, many if not all involve concentrating the plant matter, resulting in substances that contain more than 0.3% THC.
As previously reported in WeedWeek, Dave DiCosola, CEO of Chicago-based CBD brand Half Day, said of the DEA rule, “It’s almost as if they’re trying to cut the legs out from under the industry.” North Carolina cannabis lawyer Rod Kight wrote last month that the new rule “threatens to destroy” the industry.
Still, the DEA has declined to reveal an enforcement policy. An agency spokesman told L.A. Weekly last month that “the DEA is aware of the concerns of the CBD industry, and is evaluating policy options.”
Thus far the USDA has taken a more forgiving stance. It ruled last year that farmers don’t commit a negligence violation if they make “reasonable efforts” to grow plants containing less than 0.5% THC, effectively providing a slight grace buffer.
Several commenters called for the limit to be raised to 1%.
The DEA lost some of its enforcement power regarding hemp with the passage of the 2018 Farm Bill, which gave the USDA significant regulatory authority in regards to hemp, but the USDA’s current guidelines require that testing labs be certified by the DEA.
“So that’s one way that the DEA has sort of kept its foot in the game,” Mondry said.
Some commenters have taken issue with that requirement, and it could be among the changes made when the USDA issues its final ruling. Mondry suggested such a scenario could lead to a “jurisdictional dispute” between the DEA and USDA, but a lot still has to take place before then.
“It’s possible, but I think it’s too early to say whether that would be the case or not,” he said.
For information on the USDA’s interim final rule, and/or to submit a comment, visit https://www.federalregister.gov/documents/2020/09/08/2020-17659/establishment-of-a-domestic-hemp-production-program-comment-period-reopened.
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