USDA Struggles with Drafting THC Testing Guidelines


Hemp stakeholders have been eagerly waiting for the release of guidelines and regulations by the U.S. Division of Agriculture (“USDA”). While the 2018 Farm Bill removed the hemp and its derivatives from the Controlled Substances Act, it did not give clear, constant and dependable requirements to safely and lawfully create the crop. Rather, the new law tasked the USDA with adopting these requirements with which states and Native American tribes wishing to regulate the crop inside their borders will have to comply.

Earlier this summer time, the USDA announced in a notice published in the Federal Register that it aimed to release its interim final rule in August. Nevertheless, a variety of comments lately produced by USDA representatives recommend that the agency is struggling to meet its deadline. Particularly, the agency appears to be wrestling with the drafting of THC testing requirements.

THC Testing requirements matter mainly because THC concentration is the crucial aspect in differentiating hemp from marijuana.  It is the distinction in between a regulated agricultural commodity and a Schedule I controlled substance. Without the need of a national THC testing typical marijuana and hemp are practically not possible to differentiate mainly because they appear, smell and really feel the exact same.

Pursuant to Section 297B (a)(two)(A)(ii) of the 2018 Farm Bill, states and Native American Tribes in search of regulatory authority more than the production of hemp should submit a program to the USDA that contains, in portion,

a process for testing, applying post-decarboxylation or other similarly dependable solutions, delta-9 tetrahydrocannabinol concentration levels of hemp created in the State or territory of the Indian tribe[.]”

As I explained in a prior post, there is no “postdecarboxylation” testing technique per se, and even though the congressional intent of the 2018 Farm Bill apparently was to refer to a testing technique recognized as gas chromatography (“GC”), this technique has been heavily criticized by stakeholders mainly because it tends to improve the THC concentration in the hemp sample and pushes it more than the .three % limit.

So it is not totally surprising that the USDA is struggling to craft THC testing requirements with so tiny guidance.

Regrettably, this delay is additional exacerbating state and neighborhood enforcement authorities’ potential to differentiate hemp from marijuana. As of now, most jurisdictions lack the sources to test for certain levels of THC and differentiate hemp from its illegal cousin, marijuana. The patchwork of testing requirements across states has additional hindered the lawful sale of hemp nationwide. Immediately after all, why impose a .three % THC threshold if the states are imposing 50 distinctive testing requirements?

Establishing a dependable and uniform testing typical is only a single of quite a few other requirements the USDA desires to promulgate in order to fulfill the intent of the 2018 Farm Bill. Implementing a process for tracking the supply of the crop and its completed merchandise is as critical as the adoption of a uniform testing typical. Certainly, the 2018 Farm Bill legalized hemp grown pursuant to a state or Native American tribe program. This indicates that not all hemp is treated equal, even if the tested crop includes no a lot more than .three % THC.

As such, hemp market players should keep records displaying the supply of the plant, which includes but not restricted to the grower’s license beneath which hemp was cultivated as nicely as the certificate of evaluation (“COA”) for every batch of hemp or completed hemp solution tested displaying that they include no a lot more than .three % THC. If your corporation is dealing in hemp, you need to know precisely exactly where it was grown and need to be ready to prove it.

The lawful production and sale of hemp and hemp merchandise is a complicated company that calls for cautious organizing and due diligence. As such, hemp stakeholders need to seek advice from with lawyers who completely comprehend the field in order to mitigate their dangers and thrive in this pretty unregulated industry.

Re-published with the permission of Harris Bricken and The Canna Law Weblog


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