This morning at midnight, the window closed on public comment for the United States Department of Agriculture’s interim final rule on hemp. To get under the hood about state agriculture regulators’ challenges and opportunities when it comes to hemp, Cannabis Wire caught up with Bryan Hurlburt, the Commissioner of the Connecticut Department of Agriculture.
Hemp is on the agenda of the National Association of State Departments of Agriculture’s Plant Agriculture and Pesticide Regulation Committee, of which Hurlburt is the vice chair. (Read Cannabis Wire’s coverage of the USDA interim final rule and NASDA’s letter to the USDA this week regarding the rule.)
Given the importance of the USDA’s rules on hemp and the seismic effect they will have on the domestic hemp industry, which was ignited by the 2018 Farm Bill that legalized hemp, Cannabis Wire wanted to know what ag regulators are thinking about specific topics, from “hot hemp” to smokable hemp. (This interview has been lightly edited for clarity.)
Alyson Martin, Cannabis Wire: Why did NASDA name hemp one of the association’s priorities for 2020? What led to that decision?
Commissioner of the Connecticut Dept. of Agriculture Bryan Hurlburt: Connecticut specifically, but agriculture in general, is suffering from a downturn in the economy. And so, what we’re looking at from the [Ned] Lamont administration, is ways to help create opportunity. So we put the hemp program in place. Connecticut was one of the last states to do it, unfortunately. But we’ve been moving quickly to make sure that we’re putting a program in place that is strong, that is responsive to our growers, that is meeting the market opportunity.
Now with the USDA regulations that were released, we’ve got to go back and retool our program to be in compliance. I actually just left the meeting with the governor’s office, where we were going through, “Okay, we have done the comb of what do the USDA requirements look like? How does it fit with our regulatory scheme? What do we need to fix?”
In year one in Connecticut, we had over 100 licensed growers who registered for over 325 acres, which just really demonstrates that farmers are really interested in another product. They’re really trying to figure out how they can sustain their agribusiness. What can they do? So, having a state agency in our administration that wants to be helpful and assist in that is really what’s been driving our mindset. How can we provide this opportunity for Connecticut’s farmers to meet the consumer demand? I mean, everywhere you go, people are talking about and looking for CBD hemp products. We want to make sure that there is a Connecticut grown hemp product on the shelf, as well.
Cannabis Wire: With NASDA, how do commissioners or various departments of agriculture communicate about hemp? Do you all have an informal or formal working group, or any kind of structure where you’re regularly communicating on hemp?
Hurlburt: NASDA has been great in facilitating these conversations, and then pinging USDA, the White House, OMB, and then bringing the information back to us.
There is not a working group right now. But with the new regulations that have come out, every state is in the same position Connecticut is. We’re all trying to figure out: how does this work? What are our main grievances? And so NASDA becomes kind of the lead, using their relationships and the reputation of the organization down in D.C. to help facilitate the conversations, make these issues known. There’s a hemp regulators listserve and conference call that happens regularly that NASDA participates in to make sure that as our states are understanding the landscape, they’re helping inform that understanding. And so they’re really facilitating all of our efforts and making sure that we’re speaking with one voice. Now, that means I may have one particular issue in Connecticut that is outstanding, based on my current program. But, where there’s consensus or agreement, NASDA can go to the USDA and say, “Hey, this list of things is gonna be a problem. Is there any way to negotiate and move them back?” And they have been taking the lead on that.
Cannabis Wire: How would you characterize the conversations among your ag regulator colleagues around the USDA interim final rule? You just mentioned some potential problem areas or interest areas. Can you talk a little more about that?
Hurlburt: There’s just a lot of terminology questions, right? You have [dozens of] individual state programs. So, we need to go through and just make sure that we’re consistent with that terminology.
The sampling. Right now, we allow our growers to conduct the sampling, and then we do an audited sampling. We’ll go in and randomly check a number of growers to make sure that they are within the .3% THC. The regs require that the state agency inspect all of the licensed growers, which would be a tremendous burden on an agency like ours. But also, I would argue, unnecessary. Spot checking should be good enough. We now have four ISO certified labs that are participating in the program. The regulations require that the sampling labs be a DEA approved lab, which is a significantly higher hurdle. And we’re worried that you can’t be a licensed lab with the DEA if you’re testing marijuana samples. So, it’s actually quite difficult to come by.
Right now in Connecticut, we have a mitigation program. So, if a grower comes back with their THC content beyond the legal limit, we can work with them to mitigate and remediate. The [USDA’s proposed] regulations don’t allow for that. If it’s above the .3%, it is an illegal crop. The regulations say if it’s above .5%, you have no mitigation plan and you have to be on a watch list, essentially for, I think it’s five years, because they’re saying that you intentionally grew hemp that was out of compliance. When there’s a destruction order on hemp, we work with the grower. We are either present or they send us photographic evidence that the crop is destroyed, so there’s nothing left for them to sell. The new regulations require the use of law enforcement or a DEA approved reverse distributor. Again, that’s a pretty high hurdle for states to have to take into consideration.
All regulations are done, essentially, in a vacuum because you have a limited number of people who participate in them. But when they’re coming out of D.C. and you already have these state programs, it’s going to be very difficult to make a good match in many of the places. We think that they could change some of these requirements and still fulfill their concerns and their obligations regarding a legalized hemp crop, without creating these really burdensome requirements on the states that change what we’re doing.
Cannabis Wire: Hot hemp and testing comes up in my reporting, and at conferences. How much hemp in Connecticut tests above the .3% THC limit?
Hurlburt: I believe we had under 10% that we had to embargo, 10% of our licensed growers. The embargo was allowed to go through the mitigation program. So, if you had hot hemp, that would be, say, at .5% THC, we would embargo it until you could demonstrate that you remediated through a mitigation plan with a dilution or other method. Sometimes if you let it dry and you’re close, that will decrease the THC content alone.
I believe that the national figures, about 30% of crops failed. We’re on the cusp of a new program. So, you know, there are challenges with getting good seed. There are challenges with growing methods, there are challenges with testing requirements to make sure that people are testing as frequently as they need to be in order to prevent it.
I think we’re lower than many states, but still, if I’m the farmer who invested my crop land in this product, or the seeds, or the plants, and then had to destroy it, you know, 10% seems good from a statewide perspective, but on the individual, I’m still out a growing season and a revenue stream.
Cannabis Wire: What are state ag regulators thinking regarding the pending FDA rules on CBD? What’s the thinking around CBD and how those rules could affect hemp programs?
Hurlburt: We need guidance, is really what it comes down to. I think if, federally, they could just lay out the rules of the road, that would be tremendously helpful because it would create at least a level of certainty that people could conform to. Now, I would imagine that there’d be a lot of problems with whatever gets rolled out, but at least it’s something. Right now, there’s this vacuum where, I was walking through the mall shopping, and there’s a CBD For All store. And we have no idea what’s in that CBD. You know, there’s no FDA requirements to start testing for heavy metals or pesticides or THC content or labeling requirements. So there’s a lot of market confusion that if the FDA weighed in could alleviate some of that. At least lay out the rules of the road for state agencies to figure out what their plan needs to be.
Cannabis Wire: How would you characterize your conversations with other ag regulators on the topic of smokable hemp? Altria is now lobbying at the federal level on hemp. So, quote unquote Big Tobacco is thinking about some aspect of hemp, perhaps smokable. I’m curious what you and what your colleagues are thinking about smokable hemp.
Hurlburt: That’s a really tough question. So that’s unfortunately a pretty bad answer to your question. But it’s just because there’s so many questions out there around it that I don’t think there’s an easy way to answer it.
Cannabis Wire: I can see a time in the near future where, say, a pack of Marlboros are going to have some kind of hemp in them. I’m just curious how regulators are thinking about it, because I think hemp growers and producers are certainly thinking about it as a potential market.
Hurlburt: Yes, they are. And right now our only concern in Connecticut is if somebody buys raw hemp and wants to roll a cigarette at their house, there’s no … there’s nothing regarding that. So I think people are thinking about it. I think everybody is just trying to wrap their brain around the size of the problem and the best way to tackle it.
Cannabis Wire: So, what is NASDA thinking about pesticides and hemp?
Hurlburt: It’s my understanding that there are no approved pesticides for hemp specifically. But there are kind of general application pesticides that could be used on hemp.
This is another question that we’re digging into both at the federal level and at the state level, because growers are looking for guidance. I mean, again, if you’re investing this money in a crop, you want to make sure that you’re going to have a crop to harvest at the end of the year.
One of the challenges that, as we enter this new world of hemp, we’re experiencing is it takes years to develop all of this infrastructure, and years of growing and testing, when you think about plant genetics and pesticides, to make sure you get it right. And we haven’t had the amount of time necessary in order to fully explore those. So pesticides will certainly be on the agenda. I think it will be moving in tandem with the pesticide developers. I think it’s just immature at this point, but it is something we’re going to need to figure out.
There’s no infrastructure, but there is this huge market demand. There’s this huge, you know, grower demand. And so we are trying to put things in place that permit this to happen without being too burdensome. But also, I mean, there is a public health component. There’s an environmental health component that needs to be considered. But everything’s got to move forward at once.
Everybody is recognizing that we’re too invested to let this plane crash. So we’ve got to keep it moving. The fact is that the USDA did get the regs out, to their credit, in a relatively quick amount of time. I mean, that’s no small accomplishment. But the fact that, you know, we’ve got questions and concerns and want some tweaks, it’s fair, too. So as long as we can keep this conversation going, that’s important because we know that nothing will change if we’re not having that.
Cannabis Wire: Do you think that hemp rules could be somewhat analogous, for higher-THC cannabis? Do you think that various parts of the infrastructure could serve as a blueprint?
Hurlburt: I do, and I think the states will look to that. I also think that the DEA, you know, putting that requirement on the laboratories, is finding other ways to prevent it or to make it very difficult.
This is one of the challenges when there’s not a federal framework. Connecticut has as a medical marijuana industry. It’s tightly regulated. There’s only, I believe, five licensed producers. They’re putting out a ton of product. We have a hundred licensed hemp growers and now you’re making laboratories choose which industry they’re going to serve. To me, that’s unnecessary. You know, it seems like that could have been done in a way that would create the framework. Right? There’s clearly a marijuana movement that’s even impacting D.C. So you could create the framework that would allow it for when it’s ready to happen, without making it overly difficult or cumbersome.
But I think I have a different perspective on this than some people in D.C. I’m a former state House member. I worked to decriminalize marijuana. So I think that, you know, states should have the opportunity to do what they want. And I’m sure the folks at some of our federal agencies will wholeheartedly disagree with that and they’re going to use every opportunity to prevent it.
Cannabis Wire: What’s one thing that keeps you up at night when it when it comes to hemp regulation?
Hurlburt: Getting the entire vertical marketplace right is the thing that I’ve been struggling with for the past year. And part of the challenge is that we only oversee the growers. So it takes a lot of coordination with our sister agencies and partners, outside organizations, to make sure that we are creating the right framework. The goal, and the governor’s goal, was not just to create the opportunity for farmers to grow hemp. The goal is to create the opportunity for farmers to sell the hemp that they grew. In order to sell the hemp, you’ve got to have the whole vertical market in alignment. There’s the transport issues, the understanding between the growers and the processors, and the end users, and the testers. All of it needs to happen. So, we have taken a lot of additional steps that facilitate that. In February, we’re doing a hemp conference and trade show. And really it’s just to make sure there is an alignment, and getting that right, again, because you’re building the plane as you’re flying. I mean, that’s the best analogy. It’s just really difficult. It takes a lot of deliberate steps. State agencies are not always the most nimble. We’re more nimble than our federal counterparts, but not as nimble as private industry. But this is the framework we’re operating in. And so, we’ve got to be deliberate. We’ve got to be thinking through all the challenges, we’ve got to be in constant communication with our growers about what their needs are, what their expectations are.
We’ve got a lot of great compliments during these sessions with the growers. But in the end, they invested in harvesting it and all that time, the labor, the drying of the crop. If it doesn’t result in more money in their bank account at the end of the year, then I personally think we didn’t do a good enough job.
That’s why we’re doing all these actual steps, because it’s not just creating a program for somebody to grow something. It’s creating an industry and then making sure that it’s set up properly so that everybody benefits.
