Hemp Regulations Receive Temporary Changes from USDA

March 5, 2020

The U.S. Department of Agriculture (USDA) recently issued a temporary delay regarding enforcement on two provisions of its hemp regulations (1).

With these delays, hemp producers are not required to use a Drug Enforcement Administration (DEA)-registered laboratory to oversee crop potency tests. In addition, crop yield exceeding the 0.3% THC threshold, also known as “hot hemp,” will not need to be disposed of through the DEA or another law enforcement body.

Under Secretary for Marketing and Regulatory Programs, Greg Ibach said at a recent press release, “… currently there isn’t sufficient capacity in the United States for the testing and disposal of non-compliant hemp plants, USDA has worked hard to enable flexibility in the requirements in the Interim Final Rule for those issues” (2).

Feedback from industry stockholders during a public comment period last month sparked the recent changes to the provisions. They maintained that growth of the market would be inhibited and also cost restrictive because hemp was federally legalized in the 2018 Farm Bill (2). One item in particular was mentioned regarding increasing the allowable THC threshold in hemp. The USDA responded that they are unable to increase the THC limit because only Congress can resolve the issue (3). There will be a follow-up comment period for the public to commence after the current planting season.

For now, disposal obligations and laboratory testing have been delayed until October 31, 2021 or prior to a final rule being published. In relation to the Interim Final Rule, the USDA disclosed, “…while we consider these steps necessary at the moment, these policies may no longer be appropriate as we draft the final rule and will serve as a temporary measure to allow a smooth transition into regular enforcement” (5).

These temporary changes still require hemp to be tested and disposed of if there is too high a level of THC. Processors are allowed to use other facilities or methods and will still be considered compliant. In their press release the USDA stated that “labs must adhere to the standards of performance as outlined within the IFR, including the requirement to test for total THC employing post-decarboxylation or other similarly reliable methods. All labs will have to make arrangements to be compliant with registration requirements before this period of delayed enforcement expires. DEA will evaluate all applications using the criteria required by the Controlled Substances Act (21 U.S.C. 823(f))” (1).

Aside from the temporary regulations, the USDA released guidelines to help assist farmers in alternative disposal methods (6). They will also be conducting audits at random of licensees, which will help verify that hemp is being produced in conformance with their regulations.

As provisions are still being finalized for hemp, the USDA has begun accepting state regulatory plans. Recently in February, Washington state and Wyoming had their proposals approved. New Jersey, Delaware, Texas, Louisiana, Nebraska, Ohio, and several tribal plans have already been passed (7).