On Thursday, a group of state agricultural regulators swiftly voted in favor of supporting an amendment to the “federal definition of hemp to increase the total THC concentration to 1% or less,” a major proposed shift.
Members of the National Association of State Departments of Agriculture (NASDA) met this week to discuss a number of policy amendments, including COVID-19 responses and racial equity, workplace safety, and hemp. Should the powerful group’s push to increase the THC limit succeed, it would reshape the US hemp landscape. The 2018 Farm Bill, which legalized hemp in the United States, currently defines hemp as cannabis with .3% THC (tetrahydrocannabinol).
Bill Richmond, the head of the US Department of Agriculture’s Domestic Hemp Production Program, spoke on Wednesday at the start of the Plant Agriculture & Pesticide Regulation Committee meeting, during which the hemp proposal was put forth and passed for a full Association vote Thursday.
Richmond leads the team in charge of rule making, public education, and outreach efforts with state agriculture departments and Indian tribes.
Shortly after the 2018 Farm Bill passed, Richmond said that his team “jumped right into developing” rules. In January, the USDA released its final rule for the regulation of hemp. After the interim final rule was released in 2019, more than 6,000 comments poured in during the open public comment period. NASDA is among the individuals and entities that have called for fixes to the rule, and, among their suggestions was that the “negligence threshold” for THC be raised to 1%.
Richmond thanked NASDA members for the time they spent on thoughtful comments that the USDA used in their rule making on hemp.
“I know it’s an incredible lift for folks to give us those documents, to give us that data, and just know that we appreciate it so much,” Richmond said. The final rule is a result of those thousands of comments, he added.
“Your industry is loud and clear that a lot of the requirements and regulations of the interim document were difficult to meet or expensive to meet or cumbersome. And so we really tried hard to loosen some of the requirements around growing hemp,” Richmond said.
Richmond said that his team at the USDA spent the most time on sampling and testing requirements. Another change between the interim rule and the final rule is around the timeframe allowed between hemp harvest and required sampling.
“We said that that time period can only be 15 days,” in the interim rule, which led to “almost universal opposition to that requirement. We heard you loud and clear until that time window is now doubled to 30 days,” Richmond said.
In the interim final rule, one area that was met with opposition from hemp industry stakeholders involved the requirement that labs have to be registered with the Drug Enforcement Administration.
“We learned very quickly that there was nowhere near enough labs out there to be able to conduct testing. DEA allowed us to relax that requirement. And in the final rule, essentially, we were not able to completely remove the requirement that labs have to register with the DEA. But we were able to extend the deadline until the end of 2022. This will hopefully give us, and the testing community, more time to be able to make sure that we have as many labs as we need to get these tests done,” Richmond said.
There’s also the issue of “hot hemp,” or cannabis that comes in too high in THC to meet the legal definition of hemp. Richmond said that the USDA changed the requirements around “negligence,” in part because hemp can be a difficult crop to grow. The USDA doubled the threshold for negligence from .5% THC to 1%.
“We are trying really hard to provide flexibility as best we can to new growers as they learn how to grow compliant hemp. And so this negligence [limit] was included to basically say, ‘OK, if you make a mistake and you grow hot hemp, you aren’t going to be in trouble with law enforcement. You get a couple of chances to learn how to grow compliant hemp,’” Richmond said.
In the interim final rule, growers of hot hemp would have had to work with law enforcement or the DEA to destroy the hemp “the same way that we would destroy marijuana,” Richmond said.
“This is another requirement that we quickly learned that was cumbersome, difficult to meet,” Richmond said, adding that the DEA allowed for this rule to be relaxed enough to allow for on farm disposal, for example, or for growers to turn a hot hemp crop over and bury it without cops getting involved.
Richmond pointed out that the USDA final rule on hemp could still be subject to a reopened comment period, a request for additional input, or a reissue of a revised final rule “sometime down the road.” Or, the new administration could “push” the effective date out, from one or two months to longer.
During a brief question and answer session, Richmond fielded inquiries from state agricultural regulators. Doug Miyamoto from Wyoming asked if the USDA noticed any trends from the thousands of comments that the Department received.
“Almost a blanket opposition to the .3% threshold. Same with the DEA lab registration,” Richmond said.
Anson Tebbetts, Vermont’s Secretary of Agriculture, Food, and Markets who submitted the hemp policy amendment, said that he believes that “hemp does have a future in agriculture.” Tebbetts added that there are many farmers in Vermont who are “excited about hemp,” but need “more tools to grow the industry.”
Tebbets spoke in favor of NASDA’s policy amendment to support a change in the federal definition of hemp to allow for more THC.
“Increasing the total THC concentration to 1% would allow for use of available seed varieties, would provide greater assurance to the producers that they have a viable crop, and still places those limits on the THC concentration,” Tebbets said.
Steve Silverman of the Colorado Department of Agriculture added that, based on research, raising the threshold from .3% to 1% “would not have any concern in terms of public health or drug policy.”
Florida Commissioner of Agriculture and Consumer Services Nikki Fried said that the state already has close to 30,000 acres of hemp growing.
“In our climate and everybody growing outside, being able to allow the plants to get to 1% will certainly help our farmers here in the state,” Fried said, adding that the .3% threshold was a “complete arbitrary number when it was first created. So 1% is very doable on our end and we would again support this tenfold.”
