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The Devil’s in the Details: The US Department of Agriculture’s Interim Hemp Regulations

Updated: Dec 21, 2019

Authors Note: The USDA’s Interim hemp regulations have tremendous implications for all stakeholders in America’s hemp industry. Since I have been closely following the implications of federal and state regulations on the hemp industry since the 2014 Farm Bill, this is the first of a new series of articles on the impact of the USDA’s regulations relevant to all industry participants.

The long-awaited US Department of Agriculture (USDA) “Interim Final Rules” on hemp have finally been released. These interim rules are a significant step in enabling American-grown hemp to become a major agricultural crop.

The impact of USDA policies and regulations on all stakeholders in the hemp, extraction and processing, and retail sale of all derivatives of the hemp plant, including CBD is significant.

Since the 2018 Farm Bill was signed into law, all hemp industry stakeholders have been awaiting specific regulatory guidance from the USDA. While the interim rules provide an initial regulatory framework, there is a 60 day comment period. It’s also envisioned that the USDA will issue final regulations within two years. These interim rules should provide general guidance to hemp growers and processors prior to the 2020 planting season.

Highlights of the interim rules include:

  • The establishment of producer licensing requirements, either through the USDA or state regulations. These will address issues including negligent compared to intentional violations, information sharing between federal and state regulators including law enforcement, and the impact of criminal backgrounds on industry participant

  • The establishment of separate sampling and testing rules.

  • Providing clarification for law enforcement regarding the shipping of hemp across state lines, and the determination of whether the cargo is hemp or marijuana. (This is of particular importance for trucking companies, haulers, and drivers.)

  • A requirement that testing procedures utilize total THC, measuring both THC and THCA, which must be measured from the part of the plant with the highest THC, the flower or bud. (I believe that this has devastating consequences for many growers.)

A potential benefit of the interim rules is that they will hopefully provide guidance to banks regarding opening accounts and accepting deposits from hemp businesses.

My initial concerns include:

  • I view it as very troubling that the interim rules establish a role for the Drug Enforcement Administration (DEA) in overseeing testing labs. This will likely require that DEA certified labs be ISO-17025 certified, which may be prohibitively costly for many existing labs.

  • The interim rules do not address exports. The export market could be very significant for the hemp industry. The USDA indicated that they would look at the export market in conjunction with other government agencies if there was sufficient interest by industry stakeholders.

In commenting on the interim regulations, Sonny Perdue, the agency’s Secretary, stated, “At USDA, we are always excited when there are new economic opportunities for our farmers, and we hope the ability to grow hemp will pave the way for new products and markets.” He also commented, “We have had teams operating with all hands on deck to develop a regulatory framework that meets congressional intent while seeking to provide a fair consistent and science-based process for states, tribes and individual producers who want to participate in this program.

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