Oregon Hemp- An Overview of ODA Rules

INTRODUCTION

On July 8, 2020 the Oregon Department of Agriculture (ODA) held a webinar to update the public on the current and developing status of the Oregon hemp program. ODA is currently in the process of developing an inspection and monitoring protocol. This blog post is aimed at helping hemp cultivators remain compliant with ODA regulations as they continue to evolve. I will provide key quotes from ODA regulators and concrete examples of what compliance steps look like. 

The ODA inspection and monitoring program is aimed at helping hemp producers come into compliance gradually, rather than to punish those who miss certain benchmarks due to confusion or ignorance. Overt disregard for the regulations will, of course, result in revocation of licenses. 

The ODA does not have a cutoff date for licenses, and the licenses are issued for a calendar year. There are also some crossovers in the regulations between ODA and the Oregon Liquor Control Commission (OLCC) which regulates recreational marijuana, some of which also apply to hemp products. 

ODA AND THE OLCC

As a general matter, a cultivator desiring to grow more than four (4) cannabis plants must have either a recreational marijuana license with OLCC or a hemp cultivation registration with ODA. In Oregon, there are no restrictions on how to start the grow. Seeds, clones, and tissue culture are all acceptable starts, and there is no minimum or maximum number of plants that one can grow under a registration. 

PRE-HARVEST TESTING

ODA is currently still enforcing a 28 day pre-harvest testing requirement, and is working toward moving to a 15-day pre-testing requirement to come into compliance with the USDA cultivation plan. The reason for the delay is that USDA will likely open another comment period, where it may consider adjusting the 15-day pre harvest requirement. Oregon is currently still operating under authority of its 2014 Industrial Hemp Pilot Program, and intends to submit a plan under the 2018 Farm Bill to the USDA by August. 

The ODA and OLCC work together to regulate cannabis across Oregon, including both marijuana and hemp. The same analytical laboratories that conduct marijuana testing can also perform pre and post-harvest testing. These OLCC registered marijuana testing labs are generally more timely than the ODA lab, but requesting samples be tested by the ODA lab is still a viable choice. Once a cultivator has a certificate of analysis (COA) showing compliance, the cultivator can harvest that crop.

Importantly, any hemp that is going to be used for human consumption meaning “inhalation, application to skin or hair, or ingestion” must follow the same testing requirements as recreational marijuana. A consumer hemp product therefore must be tested prior to commercial sale. Since 2018, Oregon has required that consumer hemp products be tested in a way that is substantially similar to products in the recreational marijuana market, which applies a Total THC standard. This means that while ODA is still the agency in charge of regulating the testing of end-use consumer hemp products, the testing requirements must mirror that which is required on the marijuana side. Smokable hemp must test at or below 0.3% total THC. Additionally, products must be tested for moisture content and for the 59 pesticide active ingredients that must be tested for in recreational marijuana. If the product is an oil, it must be tested for those pesticides and any residual solvents, as well as for Total THC concentration. 

FELONY DRUG CONVICTION

Another requirement that Oregon will include in the hemp program it submits to the USDA is a background check for drug felonies. Oregon has not traditionally required a background check for growers under its pilot program. The 2018 Farm Bill requires that the applicant not have a felony conviction with a controlled substance within the last 10 years. This requirement must be entered into the rules, but will likely not impact this years’ licensees. 

USDA PLAN

There will be a Rules Advisory Committee (RAC) next week. After the RAC, the ODA will open a public comment period. ODA has a stated goal of submitting a state hemp cultivation plan to USDA in the middle of August, and USDA has to approve that plan within 60 days; ODA plans to have the hemp rules finalized in October, and then have them active January 1, for application for 2021 hemp cultivation licenses. 

It is the hemp cultivator’s responsibility to provide ODA with all of the pertinent documentation, to request a testing appointment, to provide paperwork to the testing lab when in the field for testing, and final COA results.

COMMON REPORTED VIOLATIONS

• Combining of grow lots; a cultivator cannot combine grow sites into growing lots. A single contiguous field can be a growing lot, but if they are not contiguous, it is illegal to combine them into one harvest lot. 
• Cultivating without a registration.
• Failure to do proper pre-harvest testing.
• Changing or falsifying test results
• Selling products above the allowable THC range. 

Most violations are reported by neighbors, concerned citizens, or law enforcement. When those reports get made, cultivators want ODA to be able to easily look up the cultivation site, and see the registration and do a compliance check. ODA wants to be able in the cultivators corner, and have the relevant documentation submitted by the registrant to back them up. 

All changes to the hemp cultivation operation of a registrant must be reported to ODA. For instance, if a cultivator had a lot and decided not to cultivate it, they need to contact ODA and notify them of that, so that they don’t come around the following year asking about pre-harvest testing. Any other changes to a cultivation plot, like subdivision into non-contiguous harvest lots, non-compliant tests, or otherwise must be notified and sent to ODA. Emailing ODA to notify of this change is sufficient. 

Quotes from Hemp Program Director Sunny Summers:

“How can we work with folks to do the right thing, rather than coming in with guns blazing?” 

“More interested in helping y’all reach the requirements, rather than playing ‘gotcha’.”

“Want to show where the industry is excelling, and set the national standard.”

“It’s going to get bumpy before it gets smoother folks. Stick with us and we appreciate your patience.”

The key takeaway is that transparency is rewarded. According to the ODA, a cultivator who comes to ODA and says “I made an honest mistake, how can I fix it?”, will have a much better chance of maintaining her registration, and continuing to be able to grow hemp than if the cultivator says “I’ll just try and get away with it this time” and gets caught. 

The ODA monitoring program will consist largely of education and outreach, and will start with random site record keeping visits. ODA will continue to work with law enforcement to discover and investigate potential violations. ODA will also continue to work with the Oregon water resource department to handle complaints of illegal water use. ODA will allocate some of the hemp revenue to hire an assistant water manager in southern Oregon to conduct outreach to industry to know what is allowed. 

What to expect during a site visit? (Beth Meyer Shenai) 

• Contact by phone / email to schedule (will not be random). 
• Meet and greet on site, tell ODA about your operation. 
• Review of 2020 registration information.
• Tour of site – inspector gathers info on current grow site and production area and/or processing facility characteristics

The Inspector passes along notes to a case reviewer, who will report back to registration holders any instances of non-compliance for potential remediation. 

If you have any further questions about the current status of the ODA hemp program, please don’t hesitate to reach out to us directly, and keep an eye on the ODA web page for upcoming developments. The ODA intends to hold further webinars on a range of topics in the future. 

July 14, 2020

This article was written by Kight Law attorney Kamran Aryah, who lives and is licensed to practice law in Oregon. Kight Law represents hemp and CBD businesses throughout the US and the world. To schedule a consultation with Kamran, please click here and mention this article.