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Heads Up from the Feds

USDA breaks silence on hemp rules

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After years of state governments greenlighting hemp production, and following several appeals from numerous members of Congress, the U.S. Department of Agriculture last week issued its (paradoxically titled) interim final hemp rules for nationwide hemp farming.

NICKYPE, PIXABAY
  • NickyPe, Pixabay

Hemp cultivation was (sort of) legalized nationwide by the 2014 Agricultural Act ("2014 Farm Bill"), wherein many states developed pilot programs and issued licenses to farms to cultivate hemp as part of state university research programs. Some states—including Oregon—established complex schemes that hemp farmers must abide by in order to participate in general commerce, so the USDA rules will probably not confuse those already in the game. Still, anytime Big Brother speaks about a particular industry, the industry players would do well to listen carefully.

Here's the 30,000-foot view of the USDA's rules under the newly created U.S. Domestic Hemp Production Program:

States and tribes must communicate to the USDA a list of hemp growers in their state, including principal place of business for each hemp farm, as well as a legal description of the property where hemp is grown.

States and tribes must communicate a sample-testing plan to verify that the hemp being grown will not exceed .3% THC, including homogenous harvest-lot testing, procedures for prohibiting those who break the rules from getting their product to market, and plans for disposal of non-compliant material.

States and tribes must produce a plan for annual inspection of random portions of each hemp farm.

States and tribes must also list their enforcement procedures to the federal government, but the federal government explicitly disclaims any responsibility to take enforcement action against negligent farmers.

If a state or tribe establishes that a hemp farmer violated these rules with a "culpable mental state" greater than mere negligence, this activity must be reported to the U.S. Attorney General, and the state or tribal government's chief law-enforcement officer.

States and tribes must establish that they have the personnel necessary to enforce their rules.

Perhaps most interesting of all is that the USDA is telling aspiring hemp producers who farm in a state that has not promulgated hemp cultivation rules that they may bypass their state government and apply for U.S. Department of Agriculture approval to grow hemp. The USDA also lists the status of hemp programs in each state on its website. Farmers in states with plans already submitted—or where plans are being developed—are still required to register with their state.

How to know if a state is "developing" a hemp plan? That can be tricky. In the case of states like Washington, where a state statute has already been passed but administrative rules haven't been issued, you can safely assume the state is developing a plan.

Many states have already submitted hemp plans to the federal government for review, and there seems to be no pattern with respect to ideological bent. Oregon, Montana, Louisiana, Pennsylvania, Tennessee and Texas—among other states and tribal governments—submitted their plans to the USDA prior to the federal rules being issued. It seems clear that the issue of growing hemp has finally surpassed political debate and has become a simple issue of farming.

Perhaps more concerning for some states, however, is the requirement of testing a random sample from each acre of a hemp farm in each state. In Texas, as in other states, officials are concerned about whether they'll have the manpower to abide by such requirements.

But what about CBD?

There's still very little guidance here. What we know for sure is that any CBD products derived from marijuana are federally illegal, classified as a Schedule 1 controlled substance by the Drug Enforcement Agency. (The DEA last year reclassified a specific form of CBD under Schedule V, but that leaves out the vast majority of CBD products.) CBD products derived from hemp are essentially in a gray area on the federal landscape, even though several states (including Oregon) have already promulgated rules on their production within the same body of administrative rules governing recreational marijuana.

Still, CBD products are everywhere, from the corner grocery market to Bend Pet Express. The USDA has not yet issued any rules relating to the specific regulation of CBD products, and our only guide is the .3% THC threshold, and a requirement that labels don't make outlandish medical claims.

While it's not clear that this was the USDA's goal, these federal hemp rules figure to be an important step on the way to full CBD legalization. Hemp plants can inadvertently produce high-THC marijuana products in the event that a male and female hemp plant manage to cross-pollinate. Accordingly, it makes sense that the feds would initially issue strict rules regarding testing of hemp harvest lots first, and address the oils, soaps, pills and beverages derived from those harvest lots later.

The interim final rule has a 60-day public comment period, through Dec. 30 at the Federal Register. More information is available at the USDA website.


Editor's note: This story has been updated to reflect that the rules issued came from the U.S. Department of Agriculture, not the U.S. Food and Drug Administration, as previously stated in the story. We regret that error. We've also updated the story with a link to the public comment portal.

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