By Shuki Greer, Esq.

Starting with the 2014 Farm Bill, and continuing with the 2018 Farm Bill, we have seen a dramatic shift in the landscape governing hemp. Prior to 5 years ago, hemp production was entirely illegal, as the Federal government handled industrial hemp the same as it handled high-THC marijuana. It was an established Schedule 1 controlled substance, entirely illegal to grow, harvest, or possess.

As awareness has grown, and the true benefits of the hemp plant have become more widely understood, the federal government has passed legislation to decriminalize hemp. However, although it is no longer considered a controlled substance, the questions about the process and regulatory requirements abound. This is because all plants grown in the United States are highly regulated by the United States Department of Agriculture, or the USDA, which has a complex framework of licensing, reporting, and general requirements for every specific product grown in the country.

Last week, the USDA published the draft of its regulations for the hemp industry. Since the 2018 farm bill, we have been living in the “wild west” for hemp. As promised, the USDA released its rules in time for farmers to get legal and licensed for the 2020 season. However, this long-awaited release has been met with mixed results.

Many lawmakers and industry leaders are happy that the federal government has finally put out regulations for hemp. First, they see this as a dramatic shift from the era of prohibition, alone a cause for celebration. Others see the certainty that we are going to have regulations put in place means that the industry will start to grow and develop at a much faster pace.  It is certainly true that the future is extremely bright for hemp. But other farmers and individuals have expressed concerns with some of the regulation’s details.

The “0.3% THC” limit, which delineates the difference between legal “hemp” and illegal “marijuana”, may be too stringent for some growers. They report that a mature hemp plant will have a THC content that will vary from day to day, including some spikes over the 0.3% limit. The new regulations require strict testing to be done prior to harvest, and if the resulting THC content is too high, the entire crop must be destroyed. This may cause farmers to harvest before true maturity, leading to a decrease in the potency or effectiveness of the CBD derived from such a harvest.

The regulations also allow the states to develop their own plans and submit them for approval. Some are concerned that some states may try to infringe on the interstate commerce occurring there, which could cause all kinds of problems and complications for the industry. Still others are worried that the method for disposing of “hot crops” requires just a little too much DEA involvement, which could also cause disruption or have a chilling effect on growth.

It is clear that these regulations are a good step in the right direction. It’s also clear that this is just the beginning, and there is still plenty of room for improvement. The USDA announced a 60-day window for submitting public comments, and then they will consider any suggestions, and then publish a final rule in the future. I encourage you to read the regulations or a summary of them. I encourage you to think about how you would be affected by these rules, and what suggestions you may have. Speak to an expert about how you can do your part to improve the landscape of the industry for the future.

Submit public comments here:

https://www.regulations.gov/document?D=AMS_FRDOC_0001-1919

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