Hemp Production Regulation in Final Stages

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By: Hemp Market Group

On October 29, 2019, the U.S. Division of Agriculture (USDA) released a draft version of the interim final rule (IFR) for the production of hemp in the United States. The draft version of the IFR is accessible right here. The USDA is encouraging market stakeholders to submit comments on the IFR.

In basic, the IFR specifies the provisions that a State or Tribal hemp program will have to include to be authorized by USDA. It also establishes the USDA federal program that will regulate the production of hemp in States and Tribal territories that do not have a USDA-authorized program.

We are continuing to evaluation the IFR closely, but we have currently taken note of the following vital provisions:

  • State and Tribal plans will have to include specific procedures for sampling and testing hemp for THC levels.
    • Samples will have to be taken inside 15 days prior to harvest.
    • Samples will have to be taken from flower material, but the IFR does not specify which portion of the flower material or contemplate a homogenized flower material sample.
    • Samples will have to be taken to a DEA-registered laboratory for THC testing. USDA is also thinking of requiring all laboratories testing hemp to have ISO 17025 accreditation.
    • Samples will have to be tested employing post-decarboxylation or other similarly reputable procedures for total THC concentration. Trusted testing procedures incorporate gas or liquid chromatography with detection. Option sampling and testing protocols will be regarded as if they are comparable and similarly reputable to the USDA program.
    • Laboratories will have to report THC benefits primarily based on delta-9 THC concentration on a dry weight basis and with a measurement of uncertainty. If the measurement of uncertainty benefits in a variety or distribution that involves .three%, the material meets the acceptable hemp THC level and is compliant.
    • If a sample exceeds the acceptable hemp THC level, the material is deemed marijuana and will have to be disposed of. There is no provision in the IFR for employing non-compliant material as feedstock or for any other goal.
  • State and Tribal plans will have to prohibit some persons from becoming licensed as a hemp producer.
    • A particular person convicted of a felony associated to a controlled substance is banned from becoming licensed for ten years. This does not apply to a felony for lawfully expanding hemp below the 2014 Farm Bill.
  • State and Tribal plans will have to incorporate protocols for correcting negligent violations by hemp producers.
    • A hemp producer does not commit a negligent violation if he or she produces plants that do not have far more than .five% THC on a dry weight basis.
  • Lastly, State and Tribal plans will have to include procedures for reporting some info to USDA.
    • For instance, producers will have to be expected to report their hemp crop acreage to the Farm Service Agency.

The IFR also sets the framework for USDA’s federal program:

  • It is anticipated that USDA will rely on the IFR for the 2020 expanding season, but it is unclear no matter if federal program licenses will be issued for 2020. States are anticipated to continuing operating pilot applications established below the 2014 Farm Bill (right after reaching compliance with the IFR).
  • After the federal program is implemented, USDA will not problem any federal program licenses to producers in States or Tribes that have submitted a State or Tribal program for USDA approval.
  • In the very first year of the federal program, applications can be submitted at any time (i.e. on a rolling basis). In future years, applications and renewal applications will have to be submitted among August 1 and October 31. Licensees issued below the federal program will not renew automatically and will have to be renewed just about every 3 years. A license will be valid till December 31 of the year that is at least 3 years right after the license is issued.

The IFR tends to make clear that even right after the IFR requires impact, States and Tribes could prohibit the production of hemp. Hemp producers in a State or Tribal territory devoid of a USDA-authorized program will only be in a position to use USDA’s federal program if not “prohibited by State or Tribal Law.” Presently, 3 states—Idaho, Mississippi, and South Dakota—prohibit hemp production.

It is also vital to note what the IFR does not do. The IFR does not:

  • Alter the legality of interstate commerce involving hemp
  • Transform the federal definition of hemp from the 2018 Farm Bill
  • Consist of a seed certification plan or
  • Resolve the problem of CBD in meals or dietary supplements, which remains inside the jurisdiction of the U.S. Meals and Drug Administration.

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