A couple of weeks ago I wrote about the USDA’s decision to reopen commenting on the interim hemp rule for 30 days. (Here is a good article by Hemp Grower magazine on the reopening). The deadline for submitting comments is October 8. So get your comments in! The USDA is particularly interested in comments on certain topics and, in my prior post, I discussed one of those topics, Liquid Chromatography Factor, 0.877, and its importance to the Hemp-CBD industry. Today let’s discuss another topic, Sampling Methodology – Flower v. Whole Plant.
Before getting into that, I would be remiss not to mention another topic that merits comment to the USDA. That is the DEA’s interim final rule suggesting that in-process hemp extract shall be treated as a schedule I controlled substance during any point at which its THC concentration exceeds 0.3 percent on a dry weight basis. Nathalie Bougenies recently wrote about a lawsuit filed against the DEA by the Hemp-CBD industry and we have written several times about the problems with the DEA’s rule:
- Watch Out! The DEA Just Passed a BAD Interim Rule Impacting Hemp CBD and Other Cannabinoids
- The DEA Does Not Want You To Worry About Its New Hemp Rule. Don’t Take the Bait!
- DEA Interim Final Rule: What Is “Synthetically Derived THC”?
- The 2018 Farm Bill Does Not Support the DEA Interim Rule
Although the USDA cannot compel the DEA to revise or withdraw the interim rule, the industry ought to tell the USDA that this conduct (power grab) by the DEA must not be tolerated.
With that, let’s look at one problematic aspect of the USDA’s hemp sampling guidelines. The current USDA guidelines for provide that the testing sample should be collected from a “cut shall be made just underneath a flowering material, meaning inflorescence (the flower or bud of a plant), located at the top one-third {1/3) of the plant.” This makes the sample nearly, if not entirely, focused on the flower. Flower, as we all know, contains the highest concentration of THC in the plant. This means that any sample is more likely to fail to meet the .3% total THC standard, even accounting for the margin of error. (For why the .3% threshold ought to be changed see here and here.) And failing a test means a “lot” must be destroyed.
Not only does the present sampling method unduly focus on the flower, the guidelines require testing within 15 days of harvest—when the THC content is likely at its peak. And samples must be collected by a USDA approved sampling agent, or a Federal, State, or Tribal law enforcement agent authorized by USDA to collect samples. These additional onerous requirements on hemp growers increase the likelihood that a crop won’t pass testing.
The point here is that the present regime is setup for farmers to fail testing. This should not be the case as we develop this promising industry. So please submits comments on this and any other troubling aspect of the interim hemp production rules. Written comments may be submitted via the Federal eRulemaking portal at www.regulations.gov. Comments may also be sent via email to mailto:farmbill.hemp@usda.gov or sent by postal mail to USDA/AMS/Specialty Crops Program Hemp Branch, 470 L’Enfant Plaza SW, PO Box 23192, Washington DC 20026.
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