New Federal Guidelines for Hemp Production

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USDA released a set of proposed regulations to guide states and growers on hemp production as part of the new U.S. Domestic Hemp Production Program. The new regulations took effect on October 31, and will be open for public comment through December. Congress legalized hemp production in the 2018 Farm Bill, yet confusion remained among states on how to regulate it. Now there is a clear path forward and a minimum proposed standard for states to adopt.

States and tribal agencies will need to submit a hemp production plan for approval by USDA. It must meet the minimum guidelines for record keeping, THC sampling and testing protocols, plant disposal in the event the crop fails to meet standards, and licensing requirements.

Hemp, not to be confused with marijuana, is a strain of Cannabis with a low level of tetrahydrocannabinol, or THC, a cannabinoid that causes psychoactive effects on humans. Modern day hemp is primarily cultivated for cannabidiol, or CBD, often touted for a wide variety of human health benefits such as reduction of anxiety and insomnia. The number of U.S. hemp acres in production is expected to jump over 400% to over 500,000 acres in 2019, as compared with 2018 production estimates. The new hemp program will likely spur greater increases. Marijuana remains federally controlled.

The new regulations allow all states and tribal lands to participate in hemp production, as well as all growers, provided the minimum standards are met. Furthermore, loan and crop insurance programs will now be open to hemp growers. The proposed rules clarify that interstate movement of hemp is legal; no state or tribal agency can prohibit transport. Prior to planting, a grower must apply for a license. New licensing is expected to start in early spring 2020. Any individuals with a prior felony conviction will face a ten-year ban on participation in the hemp program. Intellectual property protection under the Plant Variety Protection Act will be available for seed-propagated hemp. (Utility patent protection, as well as plant patent protection for asexually propagated selections, are already available).

Stringent enforcement policies proposed state that THC levels must not exceed 0.3%. Any hemp plants that test higher, called ‘hot hemp,’ must be destroyed by a federal agent. Crop insurance will not cover this loss. Samples for testing must be collected fifteen days before harvest, and testing must be conducted by one of the 180 Drug Enforcement Administration (DEA) registered laboratories. Growers are responsible for the costs associated with testing. USDA also states that the hemp crop must be harvested within a four to six-week window after flowering.

The proposed regulations do not address smokable hemp flowers (for CBD content, not THC).

A few current hemp producers have expressed concern over the proposed mandate to destroy crops that exceed 0.3% THC content, citing that the crops could remediated with certain equipment to lower the THC. Another concern is the proposed harvest time. Hemp producers often harvest seven or eight weeks post-flowering and state that an early harvest will impact the quality of CBD produced.

AmericanHort continues to monitor this developing new crop. The interim rule with request for comments can be found in the Federal Register.

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