The U.S. Department of Agriculture (“USDA”) announced on February 27, 2020, that it would give hemp farmers a 20-month reprieve from a regulation requiring growers of hemp to have crop THC levels tested at laboratories registered with the Drug Enforcement Administration (“DEA”). The requirement had raised concerns in the industry that DEA-registered labs would be overwhelmed with crop samples at harvest time, leading to delays that could cost farmers sales.
Delay in Requirement for DEA Lab Registration
The 2018 Agriculture Improvement Act (known colloquially as the “2018 Farm Bill” or simply the “Farm Bill”) removed hemp, defined as cannabis containing less than 0.3 percent THC on a dry weight basis, from the scope of the Controlled Substances Act.
The 2018 Farm Bill left open many questions about the requirements for establishing that a substance meets the legal definition of “hemp” and required the USDA to issue guidance on this and related issues arising under the Farm Bill. On October 31, 2019, the USDA issued an interim final rule, which, among other things, clarified that:
- Hemp samples must be collected from the flower or bud at the top of the cannabis plant and sampling must ensure collection of a “representative sample.”
- Testing laboratories must be registered with the DEA.
- Laboratories must test for “total THC” including THCA (a non-psychoactive acid form of THC which converts to THC through the process of decarboxylation).
- Product which, according to testing, does not meet the definition of hemp must be disposed in accordance with CSA and DEA regulations.
- Inadvertent production of a product with more than 0.5 percent total THC will not be considered a negligent violation of the Farm Bill if the producer took “reasonable efforts” to comply with the provisions of the Farm Bill.
In updated guidance issued on February 27, 2020, the USDA clarified that laboratories not currently registered with the DEA will be able to process hemp, including samples that could test above 0.3 percent THC by dry weight. Laboratories not approved by the DEA must follow the USDA’s requirements on testing methods for calculating total THC.
The USDA indicated that the changes were a result of public comments submitted on the interim final rule and of talks with state and tribal government officials applying for agency approval of their hemp production plans. The Department also consulted with the DEA. In the USDA’s updated guidance, the Department noted, “Through these conversations, we have learned that these provisions will serve as a significant hindrance to the growth of a domestic hemp market at this nascent stage.” The Department added, “For instance, we now better understand how the limited number of DEA-registered labs will hinder testing and better understand the associated costs with disposing of product that contains over 0.3 percent THC could make entering the hemp market too risky.”
Disposal of Non-compliant Plants
Hemp growers also will get more leeway on how they dispose of hemp plants that test above 0.3 percent THC and therefore are considered a controlled substance. Farmers will not have to use DEA-registered professionals or law enforcement officers to get rid of the crop. In disposing of so-called hot plants, farmers will have the option of plowing the plants under to amend the soil, cutting and blending the plants with manure or other material to make compost, burning the plants or using other methods to reduce the plants to a form that cannot be eaten or otherwise consumed. Growers must document the disposal and may be subject to surprise audits. States and tribal governments with hemp production plans approved by the USDA must notify the Department when there are noncompliant plants and provide monthly documentation to the federal government.
The grace period for using labs without DEA approval and self-disposal of so-called hot crops will end by October 31, 2021, or when a final package of hemp production rules is approved, whichever comes first.
Total THC Testing Requirement
The updated guidance did not change the requirement in the Interim Rule that cannabis be tested for total THC, including THCA. Some hemp businesses have complained that this requirement makes it impossible for them to meet the Farm Bill definition of hemp. Clearly, implementation of the 2018 Farm Bill is a work in progress which will require additional interpretation by the courts and USDA. We will continue to report on future developments.