The USDA Hemp Rule Is Flawed- Here’s What You Can Do (Video)

The USDA’s release of its interim final rule (Rule) regarding hemp production is flawed. The comment period is open through December 30, 2019. I strongly encourage you to comment online, which you can do by clicking here. We at Kight on Cannabis have written extensively about the Rule. You can read our articles by clicking here, here, here, here, and here.

I was recently asked by my friends at Darling Hemp to participate in a video they created to highlight some of the most important issues that the Rule raises. They did a great job. Here’s the video. Feel free to share it.

November 27, 2019

Rod Kight is a hemp attorney who represents lawful cannabis businesses. He speaks at cannabis conferences across the country, drafts and presents cannabis legislation to foreign governments, is regularly quoted on cannabis matters in the media, and maintains the Kight on Cannabis legal blog, where he discusses legal issues affecting the cannabis industry. You can contact him here.

2 comments on “The USDA Hemp Rule Is Flawed- Here’s What You Can Do (Video)Add yours →

  1. Excellent video, Mr. Kight. Each point extremely relevant and crucial, including the need for and benefit of people submitting comments to USDA on the Interim Final Rule. Thanks.

  2. As you state, the USDA does not have the ability to change THC (which is .3% Delta-9 not total THC) limits, and so in my opinion, everyone has been misinterpreting the interim regulations.

    Everyone seems to be under the impression that total THC is now limited to .3% but that is patently false. If the regulations are interpreted to be that the new limit is .3% total THC then these rules are in direct contradiction to the limits stated both in the 2018 farm bill’s Hemp definition and in the interim rule itself. My reasoning behind this is as follows:

    A) “HEMP.—The term ‘hemp’ means the plant Cannabis
    sativa L. and any part of that plant, including the seeds thereof
    and all derivatives, extracts, cannabinoids, isomers, acids, salts,
    and salts of isomers, whether growing or not, with a delta9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”

    There is no mention, in the 2018 Farm Bill, on accounting for a potential conversion of THCa or any other cannabinoids into Delta-9 THC (also referred to as THC which is important). This is confusing because everyone assumes that THC refers to all THC variations, but the definition is, for the purpose of these bills, to mean SOLELY Delta-9 THC (the new definition for the shorthand THC).

    I admit, when further explaining testing, they refer to decarboxylation (which was their unintended mistake) OR OTHER SIMILARLY RELIABLE TEST. In the interim rules High Perfomance Liquid Chromatography is explicitly allowed and arguably the MOST reliable test as it does not alter the state of the plants components and therefore skew results. HPLC is more reliable than decarb. testing, and is actually used in most states and then THCa is “converted” to Delta-9 using a mathematical equation. This new conversion is now the total THC amount as is allowed by the new rules.

    It is my belief that many people are actually misinterpreting the new rules to state that total THC (limit is not explicitly stated) is now the new THC (which is Delta-9). This is not the case. What must be determined is what that total THC amount is and that is all. This new total THC limit is NOT .3% the Delta-9 THC (THC) limit is .3%. This is confusing because at this point in the rules they switch over to the term THC (which still refers to Delta-9 not total THC).

    While I will admit, it is confusing and seems to imply that the new limit is now .3% total THC, it pretty clearly defines THC as Delta-9 in multiple places and not the new total THC as the new THC definition. What the requirements say is that the conversion must be accounted for, not that this is the new limit for THC. Any argument to the contrary would directly contradict both the 2018 farm bill and the interim rules guidelines on the definition of Hemp.

    Lastly, I believe the USDA does have the ability to regulate industry, as is their job. Within this scope they could potentially limit the GROWING of hemp to that total THC number being below .3% (or whatever they want for that matter). BUT they could not change the law, or impose penalties other than destruction, for NEWLY GROWN crops testing above that .3% total THC as long as they are below .3% Delta-9 THC which is the LEGAL limit (actually .5% is negligent limit).

    In a couple of weeks we should have more guidance (hopefully) and I believe this is what they will explain. BUT I if I knew the future I would probably not be commenting on here I’d be on a beach somewhere.

    TLDR: Opinion: Using a decarb. testing method is wrong, and not the intended way of testing as it provides inaccurate/skewed results. HPLC is the most accurate testing method and should be defined as the standard. Total THC is not limited at .3% only Delta-9 THC (aka THC) is but it does have to be accounted for under the new guidelines. No limit has been explicitly set for total THC.

    Disclaimer: THIS IS NOT LEGAL ADVICE. I AM NOT ATTORNEY. IF YOU HAVE QUESTIONS CONSULT LEGAL COUNSEL IN YOUR JURISDICTION.

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