Legal Experts Weigh In on USDA Interim Final Hemp Rule

Originally Appeared in Let’s Talk Hemp Newsletter, November 2019
By Steven Hoffman

As USDA seeks comments by December 30 for its new Interim Hemp Rule that lays out regulations to establish a U.S. Domestic Hemp Production Program, a major concern is the rule’s timeline for farmers getting their plants tested to make sure they don’t exceed the maximum allowed level of THC.

The challenge is the rule requires that the plants be tested within 15 days before harvest begins. The USDA says if farmers delay harvest beyond 15 days, the plants will likely have a higher THC level than the sample. If the level exceeds 0.3%, the plants will have to be disposed of under Drug Enforcement Administration regulations because the hemp would be considered a controlled substance. But the 15 days aren’t much time to submit the plants and get the results needed to know whether it’s OK to harvest the crop, Michael Bowman, a co-founder of First Crop, a public benefit company working with hemp farmers, told the Denver Post. “I would call it unworkable at this point,” Bowman said of the provision.

Meghana Shah, a co-leader at the New York City office of Eversheds Sutherland law firm, told the Denver Post, “It doesn’t address the fact that all of the sampling and testing is essentially happening around the same time for all of the producers. There’s uncertainty as to when the results will come back and how that affects a producer’s decision to actually harvest. There are a lot of sort of logistical and practical hurdles posed by the 15-day window with not a lot of answers. That is one of the areas where USDA sought comment, so I think we can expect to see it addressed during the comment period,” Shah added.

According to USDA, the draft hemp rule outlines provisions for USDA to approve plans submitted by states and Indian Tribes for the domestic production of hemp. It also establishes a federal plan for producers in states or territories of Indian Tribes that do not have their own USDA-approved plan. The program includes provisions for maintaining information on the land where hemp is produced, testing the levels of delta-9 tetrahydrocannabinol, disposing of plants not meeting necessary requirements, licensing requirements, and ensuring compliance with the requirements of the new part. The rule will become effective when it is published in the Federal Register. Comments received by December 30, 2019, will be considered prior to issuance of a final rule.

To help producers and businesses make sense of USDA’s draft Hemp Rule, a number of law firms and legal experts specializing in industrial hemp have published opinions, analyses and client alerts about the impact and key takeaways of the draft rule. Read more here for a sampler of recent legal analyses covering USDA’s new interim hemp rules.

To date, USDA has received over 800 comments on the draft rule to establish a domestic hemp program. Read the USDA Interim Final Rule here. To submit a comment, visit here. Comments received by Dec. 30, 2019 will be considered prior to issuance of a final rule. 

Learn more about the state of the industrial hemp market at the upcoming Winter Hemp Summit, Jan. 16, 2020, in Boulder, CO, and the 7th Annual NoCo Hemp Expo in Denver, March 26-28, 2020.