Comments on the content of the interim final rule, which the USDA has expressly requested, will be accepted until December 30, 2019.

When the United States Department of Agriculture released the interim final rule for the hemp program in October 2019, many stakeholders—including businesses and state agencies—were caught off guard by certain testing-related requirements contained in the rule. Because hemp is now legal under the 2018 Farm Bill if it contains no more than 0.3 percent THC concentration, testing for THC levels is critical. However, significant questions and issues with the testing requirements must be clarified.

On November 20, 2019, Senators Ron Wyden and Jeff Merkley, both from the state of Oregon, submitted a letter to the secretary of the USDA, in which they flagged—“in no particular order”—five controversial testing-related requirements and requested modifications to those requirements. Below, we have summarized the senators’ concerns and proposed solutions to three particularly controversial testing-related requirements in the interim final rule.

Timing of Testing (Pre-Harvest)

Problem: The interim rule requires that growers test hemp plants within 15 days of the anticipated harvest. As the senators noted, the hemp program in Oregon permits testing within 28 days before harvest, and that having to adopt the USDA’s 15-day rule may be “an impossible obstacle for growers to overcome” because it would not provide sufficient time before the harvest for the growers to sample, test, submit testing and receive a response, especially if there are limited numbers of testing laboratories.

Proposed Fix: As a solution, the senators encouraged the USDA to reform the rule to follow Oregon’s model (providing for the testing of crops 28 days pre-harvest versus 15 days pre-harvest).

Required DEA Registrations

Problem: The senators identified as “concerning” the requirement that hemp farmers submit their crops for testing to a Drug Enforcement Agency (DEA)-registered testing laboratory. The problem, they stressed, was that (1) the 2018 Farm Bill actually gave the USDA and FDA the sole authority to oversee the hemp program (rather than the DEA); and (2) requiring labs to be DEA-registered could lead to “tremendous bottlenecks” and unnecessary delays in the hemp market. Although the senators noted that there are DEA analytical registered labs throughout the country, they also submitted that the DEA does not know how many labs are equipped to test for the presence or the precise amount of THC in a given crop.

Proposed Fix: To cure these issues, the senators simply requested in their letter that the USDA do away with the requirement that labs be DEA-certified.

Post-Decarboxylation Requirement

Problem: The senators pointed out that, while the 2018 Farm Bill requires testing for THC using “post-decarboxylation or other similarly reliable methods[,]” there are reliable methods that do not require post-decarboxylation, and so do not take into account the conversion of THC acid into THC. As such, the senators took issue with the interim rule’s requirement that THC concentrations be measured to account for the conversion of THC acid into THC, calling the requirement a “complete reversal of the Congressional intent expressed” in the 2018 Farm Bill.

Proposed Fix: The senators propose that the USDA allow testing for THC by use of methods that do not involve decarboxylation and that it remove the requirement to convert THC acid into THC.

In addition to the above, the senators also raised concerns with the interim rule’s requirement that sample be taken “from the flower or bud located at the top one-third of the plant” and its decision to place the negligence threshold at 0.5 percent THC (as opposed to, as they suggest, 1 percent).

The interim final rule is a work in progress, and further suggested modifications—from lawmakers and members of the public alike—are to be expected. Comments on the content of the interim final rule, which the USDA has expressly requested, will be accepted until December 30, 2019. However, USDA has also stated that the interim final rule is not likely to be revised prior to November 1, 2021.