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2020 USDA Hemp Production Regulations

December 31, 2019

With the release of the 2018 Farm Bill last December, hemp was federally legalized and removed from the list of Schedule 1 controlled substances, so long as it contained less than 0.3% THC. Since then, the United States Department of Agriculture (USDA) has promised, and finally passed, interim regulations for the plant.

Though this has brought about new insurance coverage for hemp farmers through the USDA, the regulations have been met with scrutiny and concern from the hemp industry.

The New Rules

Much of the concern stems from new requirements:

  • Hemp farmers must be licensed or authorized to produce hemp under a state, tribe or USDA program.
  • Crops must be tested for legal THC levels 15 days out from harvest and meet the 0.3 percent limit, but without delta-9 testing.
  • Negligent threshold set at 0.5 percent, meaning crops must within +/- 0.5% legal THC levels.
  • Crops that do not meet the THC limit upon testing must be destroyed, and the destruction will be fined to the farmer.
  • Third-party testing is no longer allowed; DEA-registered testing sites must be used exclusively.

What does this mean for farmers?

The new provisions are stringent to say the least.

The licensing and authorization provisions are not as much a problem as the rest of the regulations, which severely inhibit production and raise the financial risk for farmers.

I have quickly observed the THC levels around 1% when the CBD levels peak. This is the same for nearly all of the 12 varieties I grew. The 0.3% limit is fine if you give 30-40 days to harvest afterward. The 15 days is fine if you raise the total THC limitations. Nowhere can I see the 0.3% and 15-day rules actually working for any geographical location.

Jeremy Sauerssig, a first-year hemp farmer and processor from Minnesota.

And his words ring true with other farmers and processors, who largely agree that, especially with the elimination of delta-9 testing, it is nearly impossible to produce plants with such low concentrations of THC 15-days out from harvest. Even if they could, it’s impossible to predict, and can lead to loss of crops. 

This leads to the second industry-wide concern: insurance. New insurance coverage will allow hemp farmers to recuperate from natural or economic disaster, but it will not cover loss of crops that are mandated to be destroyed. 

Forcing farmers to destroy their crops is a devastating consequence for this already-vulnerable demographic. This is especially true given that there are no options to remediate the failed crop. Furthermore, hot crops do not qualify for farm insurance, which means that the destruction of non-compliant hemp could force farmers into bankruptcy within a single year.

In the words of Kurt Beckley, a producer from Washington.

This clearly puts hemp farmers in a uniquely difficult position, considering THC levels cannot be remediated after harvest as they currently are. Current provisions ask for delta-9 THC levels to be at 0.3 percent within 45 days of harvest, whereas the new provisions want total THC to be at 0.3 percent 15 days before.

The new rules also disallow third-party testing, which will sever strong and fruitful relationships between growers, processors and testers, which provide essential services to businesses and consumers.

Fortunately, these rules are interim, provisional regulations that will be finalized (with or without modification) in 2022, giving everyone time to see how it works out. The questions for industry workers, however, is whether their operations will survive.

What Needs to Change

Russel Peterson, from Michigan, is “extremely concerned with allowing the plant to mature and develop as a healthy cultivar.”

Here are five things he wants USDA to consider as they develop regulations:

  • Extending the harvest and testing window to at least 30 days.
  • Allow licensed, but not DEA-owned, testing facilities to run the tests, like they do now.
  • Increase the negligent threshold from 0.5% to 1%, which is what most growers are seeing, giving producers a chance to remediate instead of discarding hot crops.
  • Allow remediation, at least for crops under the 1% negligence threshold.

Our Stance

As a marijuana law firm, we believe that this burgeoning industry should not be unfairly inhibited by regulations that could ultimately hurt the economy and the lives of thousands of industry workers and consumers. 

Ultimately, unfairly restrictive rules like the ones put forth will tank startup producers and raise the cost for established ones, which will undoubtedly be passed on to consumers, many of which need CBD medicinally.

Sign the Petition

If, like us, and like Russell and others, you’d like to help this industry grow, rather than snuff it out, consider signing the petition below.

Sign the USDA Hemp Rules Petition

Our aim is to support, encourage and assist hemp-industry workers in every part of the supply chain.

 – Alejandra Aguilera, Esq.

The Aguilera Law Center provides hemp and marijuana consultations weekdays, evenings, and Saturdays.

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