USDA Draft Hemp Regulations Are Out
[Editor’s note: This is our initial post on the USDA’s Interim Rule regarding hemp production, written on my iPhone shortly after the Rule was issued. Since publishing this article we have published several more in-depth articles, which you can read by clicking here, here, and here. -Rod Kight]
The USDA issued its draft hemp regulations today. You can read them by clicking here.
This is something that the hemp industry has been eagerly and anxiously awaiting for months. I am in the process of reading and analyzing the 161 page document now, but on first glance it appears that the USDA has created at least two provisions regarding testing that will have a dramatic effect on the industry.
The first is that the regulations have adopted a “total THC” standard. Although either gas chromatography or high performance liquid chromatography (HPLC) testing methods can be used, the testing must account for total “potential” delta-9 THC. With HPLC this is accomplished through the use of a mathematical formula. Here are the relevant provisions:
Second, all analytical testing for THC must be done by DEA licensed labs. Testing is already backlogged. This requirement may exacerbate it.
Stay tuned. There will be more analysis to follow.
October 29, 2019
Rod Kight is an 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.
Hmm…no mention of other forms of THC such as Delta 8 and 10. Does this mean, as some claim, that these isomers of CBD are legal or would they fall under the Analogue Act?
Good question, James. As a disclaimer, this comment to your question is not to be construed as legal advice to you or anyone else. It is merely my position as a commentator on an issue that has not (yet) been addressed by any court.
The 2018 Farm Bill and the USDA interim rule both make clear that delta-9 THC concentrations determine whether a particular cannabis plant is lawful hemp or unlawful marijuana. Additionally, the USDA interim rule implements a “total THC” standard in which total “potential” delta-9 THC must also be measured. This is based on the potential decarboxylation of THC-A. Finally, the 2018 Farm Bill’s definition of hemp expressly removes hemp and all of its “cannabinoids” from the Controlled Substances Act. For these reasons, it is my position that hemp derived delta-8 and delta-10 THC are not controlled substances. Note that this issue has never been tested in a court and I do not suggest relying on it in making a decision to take a particular action without first having a private consultation and discussion with me or another lawyer.
Rod, the interim final rule reads as if it takes effect immediately, and I believe you stated that in one of your posts. What is your opinion of how CBD and flower that has already been packaged for sale will be handled? Even with no post-harvest testing requirement, there is still no way to guarantee that these flowers and/or CBD products were compliant with the amended “final interim rule” pre-harvest. What is your take on the roll-out of this and the impact on what is already harvested and on the market?
Thanks,
Eric Trajtenberg, Esq
Good question, Eric. The USDA testing provisions apply pre-harvest and so do not impact hemp that was grown and harvested under a 2014 Farm Bill pilot program (ie, all of the hemp currently on the market). However, it is likely that there will be significant confusion on this issue.