USDA Interim Final Rules in Layman’s Terms

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The USDA recently released their Hemp Program’s Interim Final Rules. Here at Hemp Exchange, we have been flooded with calls and emails from folks asking us, “What does this mean to me?”

We’re here to give you a layman explanation of some of the most important points covered in the new rules. This post will be intentionally brief and will skip a lot of the nitty-gritty, but don’t worry – we will have exhaustive posts on most of these highlights coming soon.

(Disclaimer: this is not to be taken as legal advice, and we are not a law firm)

What Is It, and When Does It Take Effect?

The USDA released an Interim Final Rule (meaning it is still a rule, it has binding effects, but it is not yet in its final form). The rule defines how the USDA Hemp Program will be structured and ran and how State or Indian Tribe Programs must be structured and ran in order to be approved by the USDA. We should be clear that this rule is intended to regulate the cultivation of hemp, and it is not altering what the Controlled Substance Act considers hemp or marijuana.

The rule was made effective when it was published in the Federal Register on October 31st, 2019. Though the Interim Final Rule (IFR) itself is now effective, the language of the IFR allows for States and Tribes to continue to run hemp programs under the 2018 Farm Bill (and the 2014 Farm Bill by extension) for another 12 months.

Does It Affect Me in 2020?

In order for the IFR to affect you directly, you must either be licensed to grow hemp in 2020 directly by the USDA, or your state must adopt the new rules, submit their updated plan to the USDA, have that plan accepted, and then implement that plan.

While not impossible, it is highly unlikely any state will get a new program in place prior to planting in 2020.

What Does It Say About THC Levels?

The USDA program will require all hemp grown to be tested at or under 0.3% Total THC. Total THC is Delta 9 THC plus 87.7% of THCA. Labs may also decarboxylate prior to testing, which would convert all THCA to Delta 9 THC (at a conversion rate of roughly 87.7%).

What About Sampling?

For the USDA program, samples will need to be taken 15 days before harvest by a USDA certified sampler, law enforcement, or regulatory agency actor. In addition, the associated literature that was released by the USDA states that a sample will be taken below a flower on the top 1/3rd of the plant. That sample will be homogenized, all seeds and stems would be removed, and that sample would be sent off for testing.

Additionally, the USDA later commented, indicating that they would grab the top 2″ of flower from the very top of the plant.

Anything in There About Labs?

Labs will all need to be approved by the DEA, AMS, USDA, and LAP, and also be ISO 17025 certified. If the lab determines that the material is over the limit, not only will they notify the licensee, but they will notify the USDA, which will then issue a destroy order. Destruction of material will need to be handled by a DEA approved agent or a regulatory or law officer.

There is also a requirement that labs must state their level of certainty, and that metric will be considered when determining whether a sample is compliant or not.

Our Take on the Rules

Despite some clear wins, we feel the IFR is mostly bad for the industry. 

Wins:

  1. Interstate transport is, yet again, explicitly protected by the IFR.
  2. Sampling and testing will be consistent, which will help the market understand what they are buying and selling a little better.

Our Largest Areas of Concern:

  1. The time between testing and harvesting is too aggressive;
  2. The top 2″ of the plant is going to be the highest cannabinoid profile of the entire plant and does not fairly represent the plant in its entirety;
  3. 0.3% Total THC is too aggressive, and most genetics do not support this requirement yet;
  4. The requirement for labs to be registered by the DEA is overbearing; and
  5. In-process materials (such as crude and distillate) continue to be a grey area with no clarification.

What Would We Change

We would like to see the following:

  1. We feel, and the industry almost unanimously supports, a THC limit of Delta 9 THC at or below 0.3% with a Total THC percentage at or below 1.0%. This will give enough breathing room for farmers to use current genetics without constant fear of total crop loss. It is clear that cannabis with a Total THC percentage of 1% would not be considered marijuana by anyone with common sense;
  2. The 15 day harvest window should be extended to 45 days. We have already seen states struggle to maintain a 30 day window, and 45 days will give plenty of time to compensate for delays, whether due to a lack of human resources or weather/environment issues;
  3. The sampling should be a true picture of the entire plant. Simply using the “hottest” part of the plant is unreasonably restrictive;
  4. There is no reason to require the DEA to register labs. We understand the concept, but there should be a carve out for “hot hemp” that doesn’t require DEA involvement;
  5. There should be explicit language clarifying that in-process material that is made from otherwise qualifying hemp plant material is allowed and protected; and
  6. There should be clear language that once material is fit for commerce, it is a legal product from that point forward regardless of what happens after is deemed legal.

No Room for Complacency

Now is not the time for you to let “someone else handle it.” There is a 60 day comment period which ends on December 30, 2019 in which the USDA is considering the voice of the industry. You must personally comment on the IFR and request adjustments. If you do not personally do this, you are putting the entire industry at risk.  So far, there have been only about 700 submissions which is not enough.

Follow this link and comment immediately. Encourage everyone you know to do the same. Get loud, write clearly, and be persistent. The time to act is now.Additionally

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