The legalization of industrial hemp in the Michigan Regulation and Taxation of Marihuana Act (MRTMA) and the 2018 Farm Bill opened the door for the resurgence of industrial hemp in the U.S. economy. For the 2018 Farm Bill to fully take effect, however, the U.S. Department of Agriculture (USDA) must first develop a federal hemp program. The USDA has taken the first steps to establishing this program by publishing proposed regulations governing hemp. Now those regulations are the target of significant backlash from the hemp community.
The USDA regulations contain stringent requirements for maximum THC content, THC testing, harvesting timetables, and other regulations that the hemp industry views as impractical. As defined by the 2018 Farm Bill, hemp must contain less than .3% THC in order to not be considered marijuana. Any plant with THC content of over that amount could lead to the destruction of an entire crop. And that is only the beginning of the problem.
Hemp, while a robust and versatile plant, can be finnicky when it comes to THC content. Different growing conditions can cause significant variances in the amount of THC present in the plant, which requires farmers to carefully monitor the best time for a harvest. But the USDA has proposed a requirement that farmers harvest their crop within 15 days of having it tested for THC. Samples would have to be exclusively tested at DEA-certified laboratories, which are in short supply. Samples would also have to be taken from the part of the hemp plant with the highest THC concentration. Any hemp testing above a .3% level for THC would have to be destroyed, and crops that repeatedly test at a level above .5% (which is considered a “negligent violation) could lead to the revocation of a farmer’s ability to grow hemp for a five year period.
Many states where hemp could become a key industry are calling these regulations unworkable. By artificially tying the harvesting window to sampling, limiting THC testing to a relatively small number of facilities, and setting a low threshold for the maximum THC value for a negligent violation, the USDA has created strong disincentives for farmers to move forward under the new regime. If these regulations were to go into effect as written, hemp may continue to be cultivated almost exclusively for research purposes.
Thankfully, the USDA appears to be mindful of this feedback, as it has extended the public comment period on its proposed regulations until January 29, 2020. At Grewal Law PLLC, our cannabis team encourages everyone to take the opportunity and push back against the USDA’s heavy-handed attempt to overregulate hemp!