Opinion: USDA Needs to Lighten Up on 0.3% THC Limit in Legal Hemp Industry
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Opinion: USDA Needs to Lighten Up on 0.3% THC Limit in Legal Hemp Industry

The USDA's interim rules include regulations that all hemp producers must abide by, including THC testing procedures and disposing of “hot” crops.

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November 25, 2019

Who’s afraid of hemp? Apparently, the U.S. Department of Agriculture. Unlike cannabis grown in state-legal medical and adult-use markets, hemp cultivation is no longer federally illegal. To make that clear, the USDA has published guidelines for hemp producers. The rules are a good start, but the structure places an unfair burden on hemp producers to avoid accidental THC-rich cannabis cultivation (“hot” crops), and the rules will hamper a growing economy.

The program outlines the rules all hemp producers must abide by, including THC testing procedures and disposing of “hot” crops. “Hot hemp” tests over 0.3% THC content, under the new guidelines, an increase of THC above that threshold changes legal hemp into illegal marijuana, a Schedule I substance. The 2020 growing season will be a test run of how these rules will work for the producers and the regulating agencies. The USDA will likely get an earful during the public comment period, and, as a researcher studying hemp production, I’ll go first. 

Hemp is a versatile and valuable crop, useful for the production of cannabidiol (CBD), the seed harvested as a grain high in omega fatty acids and the fiber used for textiles. It also has burgeoning uses as a biofuel and plastic alternative. Producers might think they are growing hemp but end up harvesting marijuana (“marijuana” used here to denote cannabis plants testing above 0.3% THC content).

Different varieties of the cannabis plant have been bred for maximizing some characteristics over others, such as CBD versus THC levels, but the growth environment and age of the plant at harvest can also influence the cannabinoid levels. Under the new guidelines, if a sample tests above 0.3% THC, adjusted for a “Measurement of Uncertainty” to allow for measurement error, the producer cannot sell their crop and it must be destroyed at their own expense. The USDA doesn’t have jurisdiction over illegal substances, however; the Drug Enforcement Administration (DEA) does.

The new rules also stipulate that hemp samples must be tested for THC levels at DEA-registered labs used to test controlled substances. USDA-approved licensing agents or trained law enforcement officers must travel to farms to collect the samples. Any delay in testing standing crops by the already-overburdened DEA will increase the risk that THC will grow to illegal levels. It is not clear in the new rules whether harvest will be allowed before test results are returned.

These guidelines are unnecessarily strict, and they expose farmers to too high a burden of legal risk and cost. In states where medical or adult-use cannabis is legal, the smokable product is generally between 15%-30% THC content. A hemp bud containing even 1% THC isn’t going to get anyone high, the same way the alcohol in kombucha doesn’t get anyone drunk. Under these new guidelines, it doesn’t take much for hemp to change from completely legal to criminal. Crop insurance does not cover a crop destroyed because of high THC.

The 0.3% threshold should be relaxed to 1% THC, which would allow producers more legal and economic security.

READ MORE: International Hemp Industry Hopes to Change U.S.’s 0.3% THC Limit 

Hemp should be tested for THC levels before it is turned into products and sold, but it doesn’t take a DEA-registered lab to distinguish between what we’re legally calling “hemp” and THC-rich cannabis. Labs should meet strict criteria, but requiring hemp be tested at DEA labs goes too far. The USDA is considering establishing a “fee-for-service hemp laboratory approval process for labs that wish to offer THC testing services,” a good idea that will create additional new businesses from legal hemp cultivation.

Cannabis skeptics may think if the THC level is raised for hemp, producers will take advantage and grow illegal marijuana. They should look at Oregon, an oversaturated market, with an overabundance of legal cannabis and falling prices. It’s not hard to grow a lot of cannabis. Thirty-three states have legalized medical cannabis, and 11 states have legalized recreational cannabis. It’s not going away and it needs to be regulated. Producers caught growing THC-rich cannabis when they are licensed for hemp should be held accountable, if they did so purposefully.

But testing regulations in the legal hemp industry are another matter entirely.

As international tariffs and Americas’ changing tastes disrupt the status quo of agriculture farmers are seeking alternative markets. Farmers trying to grow hemp legally should be able to do so without fear of losing money from having to destroy “hot” crops.

I don’t expect hemp producers to become millionaires but I do see hemp as a way for farmers to stay in business. Isn’t keeping them in business part of the USDA’s job? 

Lauren Kurtz is a graduate student studying plant science, with a focus on hemp, at the University of Connecticut.