Last month, Daniel Shortt and I put on a webinar on the US Department of Agriculture’s (“USDA”) new interim hemp rules. We got some great questions from our viewers but were unable to answer all of them in real-time. In this two-part series, Daniel and I will respond to a number of those questions. In the first part [ONCE FIRST POST IS PUBLISHED, ADD LINK], Daniel focused on licensing and transportation questions. Today, I will focus on questions related to THC testing.

TESTING

Has the USDA provided any list of seeds that have satisfied total THC testing?

No. Although certain states have identified hemp seed that would work well in their specific geographical areas, the USDA has decided not to include a seed certification program in the rules. The agency explained its decision as follows: (1) the same seeds grown in different geographical locations and growing conditions can react differently; (2) the technology necessary to determine seed planting results in different locations is not currently advanced enough to make a seed certification scheme feasible; and (3) the agency does not have accurate data on the origin of most hemp seed planted in the U.S.

Are you going to address the 15 days to finish harvest rule? It means that if the lab is backed up with tests, it’s possible harvest would have to commence and possibly finish before results are received?

Requiring that growers test hemp plants within 15 days of the anticipated harvest may be an impossible obstacle for growers to overcome because it would not provide enough time for growers to sample, test, submit testing and receive a response before harvest, especially if there will be a limited numbers of testing labs. This is one of the issues that Senators Wyden and Merkley commented on in a letter to the USDA. We strongly suggest you share your thoughts as well on this matter.

How do the testing rules relate to hemp biomass?

The USDA testing rules do not address the testing of hemp biomass. Instead, the rules only provide for the pre-harvest testing of hemp. The testing of hemp biomass may be addressed under state rules. Note, however, that states like Oregon only impose THC testing requirements on pre-harvest and finished products intended to be sold to end-use consumers and are not providing guidance on the testing of hemp biomass.

Must labs be 17025 certified? Is there a grace period to get certified?

The USDA rules provide that it is considering establishing a fee-for-service hemp laboratory approval process for labs that wish to offer THC testing services. These USDA-approved labs would need to comply with the USDA’s ‘‘Laboratory Approval Program” requirements, which mandate that labs be ISO 17025 accredited. Alternatively, the agency is contemplating requiring all labs testing hemp to have ISO 17025 accreditation. Accordingly, because the USDA is only considering an ISO accreditation, it is unclear whether a grace period would apply. This is likely an issue that the agency would clarify if it were to adopt an accreditation process.

Is there any language on R&D allowances? For example, having R&D fields separate from production fields.

No, the rules do not address this issue.

Please explain in more detail the concept of delta 9 and total THC testing.

We have written on this issue and would suggest reading this post.

Regarding the switch to total THC by the ODA – has their plan been approved by the USDA yet? If not, then how important is it to follow their rules to a t?

As the 2018 Farm Bill states, and as the USDA rules reiterate, the 2014 Farm Bill will remain in effect until October 31, 2020. Moreover, until the USDA approves a state’s plan, in this case Oregon’s, the current Oregon Department of Agriculture (“ODA”) rules are the only requirements with which registered growers and processors must comply. Therefore, it is crucial for ODA registrants to follow these rules particularly until the USDA approves the ODA’s plan under the 2018 Farm Bill. Moreover, it is important to remember that the USDA rules only set a floor for state plans, which means that states are free to set more stringent standards for the production of hemp.

Can you get a recreational marijuana license and hemp license and just cover yourself that way if your crop test “HOT”?

The short answer is no. Although states like Oregon allow the same entity to hold an ODA registration and an Oregon Liquor Control Commission (“OLCC”) recreational marijuana license, both agencies require that the hemp and marijuana handled by the registrant/licensee be kept separate. Therefore, an ODA registrant could not simply transfer its “hot hemp” to its marijuana business to avoid liabilities under the ODA testing rules.

Will hemp processing facilities (extraction) be required to have a DEA registration?

The USDA rules do not address the processing of hemp. The oversight of hemp processing will fall on the state’s shoulders (departments of agriculture or departments of health, most likely). Therefore, it is unclear at this time whether states will mandate that processing facilities be DEA registered.

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