Five months ago, the United States Department of Agriculture (USDA) adopted its final rule for the establishment of a domestic hemp program. Stakeholders fiercely debated various elements of the rule, but perhaps most virulently the THC threshold of 0.3% Total THC. Now, Kentucky hemp legislation is addressing the issue on the state level.
The hopes that the USDA would alter this 0.3% allowance was dashed upon the adoption of the final rule, which remains unchanged. In response, Kentucky State Senator Adrienne Southworth introduced Senate Bill 113, to increase the allowable amount of tetrahydrocannabinol (THC) in hemp to 1% in Kentucky.
Critics have long argued that the 0.3% Total THC limit is unrealistic for current hemp varietals, all of which are currently cultivated with under 0.3% Delta-9 THC limit, a threshold used by a number of state hemp programs. While improved genetics could be achieved in the future, finding truly compliant hemp genetics within the USDA’s rules has proved improbable for farmers across the country.
Background on the USDA Rule
For newcomers, the USDA’s rule lays out how hemp may be produced, tested, harvested, and licensed in the United States. Its adoption is a major step in normalizing hemp production around the country, and showing legislative support for the burgeoning industries around the plant, including CBD.
That doesn’t mean it went without it’s push back.
While agricultural programs typically receive few comments, hemp has been an entirely different story. During the initial comment period, the USDA received over 4,600 comments from those at every level of the industry. This led to the USDA Reopening the comment period, which again received an enormous amount of feedback.
What Changed (and Didn’t) in the Final Rule
Over the course of the comment period, stakeholders in the hemp industry sought numerous revisions, several of which were worked into the final rule. Most comments focused on the logistics of growing, sampling, and testing hemp
Several notable changes that were adopted include:
- The window for required sampling of hemp plants was extended, from 15 to 30 days. This allows businesses more time to sample a harvest, preventing backlogs in testing.
- Pre-harvest samples must still come from the cannabis flower, rather than the whole plant (including leaf and stem), but those samples can now be taken from five to eight inches from the stem.
- Instead of using strict federal sampling requirements, the rule has shifted to “performance-based” sampling.
- The USDA maintained its requirement that hemp must be tested only at labs certified by the Drug Enforcement Agency (DEA), but delayed the enforcement of that rule until December 31, 2022.
- The temporary allowance of “hot” hemp to be eradicated on site has been made permanent.
Additionally, hemp processors now have more flexibility when it comes to THC negligence standards. Negligence is a major area of risk in hemp, as many of the rules are still worrisome for hemp processors and producers — and it comes with regulatory action.
Specifically, if hemp producers violate the USDA plan, they may be subject to enforcement and corrective actions. Under the USDA plan, “[n]egligence” is defined as the “[f]ailure to exercise the level of care that a reasonably prudent person would exercise in complying with the regulations set forth under this part.” Id. at § 990.1.
With the final rule, processors fields can now reach 1 percent, rather than 0.5 percent, without necessitating eradication. The processor will still be required to remediate or dispose of plants that exceed the acceptable hemp 0.3% total THC level.
This reality has pushed Senator Southworth to introduce the Kentucky legislation, and tackle the problem head on.
Why total THC matters
For farmers and seed geneticists, the requirement of Total THC (as opposed to Delta-9 THC) remains a major concern. Currently, there are little to no hemp varieties that comply with the USDA’s final rule. For an industry with a $2.8 billion market size in 2020 alone, the debate around THC requirement has proven to be an existential threat.
While Senator Southworth may still have hopes for a change on the federal level, SB113 puts Kentucky in the forefront of states changing the rule on the local level.
The discourse around hemp and Kentucky legislation isn’t anything new. U.S. Senator Rand Paul of Kentucky introduced a similar bill, the Hemp Act of 2020, which aims to change the total allowance to 1% at the federal level. Historically, the state has been advocating for hemp since the early 2000s.
And state still may have a pathway to alternative THC testing requirements. According the USDA Agricultural Marketing Services twitter account, “Under the U.S. Domestic Hemp Production Program, states and Indian tribes can submit hemp production plans for USDA approval or use @USDA’s federal hemp production plan.”
For now, hemp processors will have to assume the USDA rules are final, unless changes come from the federal level, or their state or territory provides access to different rules through their own hemp programs.