State agriculture regulators on Tuesday urged the United States Department of Agriculture to be more flexible so state hemp programs have an easier path to compliance.
The National Association of State Departments of Agriculture (NASDA) represents state agriculture commissioners, departments, and secretaries in each of the fifty states and four U.S. territories. The Association on Tuesday released their comments to the USDA on the eve of the closure of a public comment period on the USDA’s interim final hemp rule, published in October 2019. (Read Cannabis Wire’s coverage of the rule.)
State agriculture regulators, through NASDA, highlighted their top concerns about the USDA’s proposed regulations. The topic at the top of that list? Sampling. Specifically: the requirements that every hemp plot be sampled, and within 15 days of harvest; the .5% THC “negligence threshold” (cannabis must be .3% THC to be considered hemp); and unclear guidelines for how noncompliant crops should be destroyed.
“This rule comes after 18-years of work by NASDA to legalize hemp production in the U.S.,” NASDA CEO Barb Glenn said in a statement about the Association’s official comment, thanking the USDA for their “extensive outreach and work on developing this rule.”
“We look forward to working with USDA as we learn more about the regulatory improvements that will be needed to ensure that we are developing a regulatory framework that is workable for hemp farmers and state regulators,” Glenn continued.
The 2018 Farm Bill legalized hemp, or low-THC cannabis, in the United States. And considering the plant has been subject to decades of prohibition, the passage of the Farm Bill set off a cascade of rule-making, much of which is being drafted for the first time. NASDA’s state agriculture regulators have zeroed in to identify each area that “lacks clarity or fails to provide the flexibility” states require to stay within the new federal rules.
“We know at least 30 states will have to revise their own laws in order to comply with the requirements of the Rule. Without some flexibility, this could exacerbate competitive differences between the states and hamper growth of the national industry,” Glenn said.
Specifically seeking flexibility, NASDA on Tuesday made several recommendations to the USDA on the topic of hemp testing. For example, NASDA wants the “negligence threshold” for THC to be 1%, and for state programs to be able to create “mitigation plans,” which might help save hemp crops that are “hot,” or too high in THC to be compliant. On that note, NASDA asked the USDA to let state hemp programs communicate with state law enforcement, not the DEA, when it comes to disposal plans of hemp that doesn’t meet standards.
NASDA asked that the USDA consider “dropping the requirement” that states need to work with a lab registered with the DEA, and to instead allow the use of labs that “have the technical expertise.” NASDA also asked that the testing window be extended from within 15 days of hemp harvest to within 30.
NASDA also recommended that research continue to be a priority, and that the USDA create specific “categories” for hemp’s various uses when it comes to commerce and research, for example.
In December, NASDA’s Board of Directors named hemp as a top priority for 2020, along with international trade, food safety, and labor. NASDA also released a short report on hemp that included highlights from a preliminary survey of the Association’s members:
• 70%: states that will submit a hemp plan to the USDA after reviewing its hemp rule on domestic cultivation.
• 85%: states that will have to change their hemp laws to comply with the USDA’s rule.
• 40%: states keeping electronic records.
In February 2019, NASDA updated their formal policy on hemp, “emphasizing five key principles.” One of those principles was to encourage the Food and Drug Administration to create the rules that will guide the production of hemp-derived cannabidiol (CBD), “which will protect public health and foster growth in the U.S. hemp industry while remaining consistent with letter and spirit of federal law.”
“At the heart of these principles is the recognition that hemp production offers enormous potential to U.S. farmers. The United States is well-positioned to develop the most competitive and highest quality hemp industry in the world. To help U.S. farmers realize this potential, federal and state authorities should strive to implement greater uniformity in regulatory standards,” Glenn wrote in NASDA’s comment to the USDA.
Also in February 2019, former FDA Commissioner Scott Gottlieb spoke at NASDA’s Winter Policy Conference and devoted a substantial portion of his remarks to cannabis and CBD.
“I also know there’s interest among NASDA members in the regulatory framework for products derived from cannabis,” Gottlieb said in his prepared remarks. From there, he reiterated much of what was published in a statement released the same day as the passage of the 2018 Farm Bill, for example, that unproven claims about the therapeutic potential of CBD abound, and that THC and CBD cannot be added to foods because they are in FDA-approved drugs.
Gottlieb then reminded the audience that the FDA would hold a public meeting on the issue, which happened in May. (Read Cannabis Wire’s coverage of the FDA meeting.)
“We know that this process could take time. So, we’re also interested in hearing from stakeholders and talking to Congress on possible alternative approaches; to make sure that we have an appropriately efficient and predictable regulatory framework for regulating CBD products,” Gottlieb said last February.
