29 Oct FLASH: USDA Releases Interim Hemp Rules

Earlier today, the US Department of Agriculture released “interim final” rules to implement the Agriculture Improvement Act of 2018 (also known as the 2018 Farm Bill). The law removed hemp and hemp-derived products with less than 0.3% THC from being a Schedule I drug under the Controlled Substances Act. The law further directed the USDA to adopt rules to allow states and individual companies to submit plans to grow and sell these products. Rather than publish a set of proposed rules that would not go into effect until a months-long comment period and further consideration, given the urgency the USDA issued rules that are deemed final but also subject to change following the receipt and review of comments. The rules expire in two years, during which time permanent final rules are expected to be adopted.

We are all still reviewing the 161-page rulemaking. Based on reports and a brief review it appears initially that, in general, the rules focus on (1) testing for THC levels, (2) making clear that interstate transportation of hemp is permitted even through states with no state legal hemp program, (3) requiring destruction of “hot” crops with THC in excess of the legal limit and (4) a plan to collect data on the production of hemp, hopefully providing more information about how much acreage has actually been used to grow nationwide.

In testing, it appears the USDA will continue to allow states, for the most part, to select the appropriate testing method to use. Some industry advocates were hoping the USDA would adopt a single or otherwise specified methods of testing. Others also have expressed concern about the requirement to destroy crops in excess of permitted THC levels as they believe these crops could have other uses, such as compost. Industry supporters do appear pleased, however, that allowing interstate transportation was made clear. Stay tuned as we get through these rules. The USDA was under tremendous pressure, primarily from Congress, to ensure that rules are in place for the 2020 planting season.