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New USDA Rules Spell Problems For Smokable Hemp Flower Industry

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Written by Jack Woodhouse
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If you have any interest in the hemp industry, you may have heard about the USDA recently publishing its interim final rule (Rule) on October 29, 2019. 

This Story has been updated with new details since being published

The anxiously-awaited rules look like they will pose some problems for the industry, and, therefore, the industry is fighting back. But what exactly are these new rules. Here’s a quick summary of what you can expect to see changing.

A summary of the main points from the new rules is as follows:

  • Total THC (i.e. THC + (THCA * .0877)) must be 0.3% by dried weight or less
  • Testing must occur 15 days prior to completion of harvest
  • As little as 2″ of terminal flower cut from each sampled plant 
  • Testing lab must be licensed by the DEA 
  • Rules go into effect immediately for non-pilot program states
  • Pilot states must transition by 10/31/20.

That last point is noteworthy. It says that states with existing pilot programs may operate under the 2014 Farm Bill provisions until 10/31/20 – as long as they have their proposed programs submitted to USDA by 9/1/20. This means that the majority of this season’s harvests (which just took place) won’t be subject to the new rules. 


What’s the problem ?

According to many in the industry, the major issue with the new rules are the ‘total THC’ testing specifications. Under the new guidance, most current crops would be deemed unlawful as the majority contain well over 0.3% THC.

This is because, under the 2018 Farm Bill, there is language that suggests that while THC is controlled, THCa – the non-psychoactive precursor to delta-9-THC (which is psychoactive) – is not restricted. This led to many crops with well over 0.3% total THC being deemed lawful as they have delta-9 THC levels below 0.3%. 

This new clarification poses a huge problem as most of the genetics available for farmers produce over 0.3% THC, restricting the variety of strains that can be grown. 

Another issue is the suggestion that only DEA-licensed labs may be used to do the testing. The man problem with this is that in order to be licensed, a lab must already be legally able to handle cannabis.  And since cannabis is a schedule 1 drug, only labs in states with some sort of legal cannabis can apply for a license. And even those labs will undergo a lengthy application process.

The final complaint that many in the industry are positing is the testing method of using only the top two inches of the plant. The top flower is known as the cola and this is the most cannabinoid-dense part of the plant. If some stalk and leaf was included in the testing, it would make testing under 0.3% that much easier.  

The industry’s response

Many in the industry are clearly upset at the highly-prohibitive new rules and are making their feelings known. There is a 60-day public comment period which many are using to express their discontent.

It’s thought that there will be many pushing for 1% total THC, or even a CBD: THC ratio of >1. Also, requests to test the whole plant not just top 2 inches, and for the testing period to be within 60 days of planting, not 15 from harvesting.It’s also been suggested that a number of industry leaders are filing a Class Action Lawsuit.

What the new rules could mean for the industry

The new rules published by the USDA, if not amended, would have huge repercussions on the hemp and CBD industries. As stated earlier, a huge majority of the genetics currently available reliably produce more than 0.3% total THC and would, therefore, be unlawful to grow. 

It may also lead to lower CBD levels in final products, as capping the total THC content at 0.3% results in diminished overall cannabinoid production. While many hemp flower products currently contain up to and over 20% CBD, it will be very difficult to reach those levels while keeping THC below 0.3%.

The changes do, of course, mean there will be ample opportunity for producers of compliant seeds, as well as approved labs, although it will only benefit a very small percentage of companies. 

Summary

The USDA has caused shockwaves through the hemp industry with its publication of its interim final rule. Industry professionals have many qualms with the new regulations, including the decision to test for total THC rather that just delta-9-THC.

Other sticking points include a 15-day harvesting test period, as well as the fact that the most top 2” of the plant – the most potent part – must be tested at DEA-licensed labs. You have 60 days to make comments on the rules, however, and many will be hoping that compromises that suit all parties will be possible. 

If not, the U.S. hemp industry – in particular, producers of smokable hemp flower – will face a limited choice of seed genetics, a less valuable final product, and much more difficulties getting their product tested legally. 

This could stall the rapidly growing industry and leave consumers and producers alike infuriated. You can make comments to the USDA here (‘Comment now’ button at the top-right of page). 

The USDA has proposed a new limit of 0.5 percent THC for legal hemp plants. Check back with us for more updates as the story continues to unfold.

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About the author

Jack Woodhouse

4 Comments

  • All great points. The last one however is somewhat misleading. The “permitted” 0.5% only means the grower did not cause the grow to be hot; however, must destroy the crop. If there is 3 instances of this occurring in 5 years the grower loses his/her/their license to grow hemp. I think this is Machevellian as the THC can be removed under extraction or the product can be used for other than ingestion such as plastics or hempcrete.

    I also believe states like Colorado has an “acceptable” process in place; however, who selects what plant, what part and when appears to be overridden by USDA requirements.

    Even in Colorado where it is explicit in the posted public policy stating delta-9 THC, there are many with the CO state ag Dept and those regulated who believe its TTHC.

    What’s galling is some states clearly understand the economic engine hemp growing provides by allowing total plant as representing the sample about assuring none will exceed <0.3%. Even this is foolish as most seeds have somewhat unstable genetics due to hybridization where multiple phenotypes exists in the same strain batch of seeds such that two plants can half 1/2 the level of the other’s CBD or THC.

    There’s also the issue of where as some growing seasons for veg and flower differ in locations of colder climates and amount of daylight. It makes me wonder if the intention is not to force all growing indoors for those harvesting for CBD versus seed stock and fiber.

    I’m wondering how much the MMJ lobby is behind the THC v the delta 9 issue; as the 0.3% is so low as to border on silly. Even the COA reports are vestige of MJ potency as the THC is highlighted and the delta 9 is relegated to a line item with other cannaniboids.

    What other industry is the producer responsible for the level of intoxicant? It is clear alcohol and nicotine are not.

  • Hello Jack Woodhouse,

    I like your blog post. It’s new rule provided by USDA “Spell Problems For Smokable Hemp Flower Industry”. Thank you so much for sharing new and latest information.

  • The issue of DEA-approved labs is a dangerous one.

    If passed, this could completely put a halt to the CBD industry. Current labs without much regulation are already slow to process results. In order for labs to be sanctioned by the DEA could take months or years, limiting the amount of cultivators that could have their harvest approved. We need safety, but this proposal for DEA labs could destroy our industry.

    Rod Kights shares warnings about this issue in this podcast, ‘The Hemp Startup Journey’.

  • Hi,
    your post shows valuable information about USDA rules. According to many in the industry, the major issue with the new rules are the ‘total THC’ testing specifications. Under the new guidance, most current crops would be deemed unlawful as the majority contain well over 0.3% THC.
    Thanks!

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