The final rule, which regulates U.S. hemp production under the Agriculture Improvement Act of 2018 (the 2018 Farm Bill), will replace the USDA’s interim final rule (IFR) on hemp, published Oct. 31, 2019. One of the most heated aspects of the IFR was that hemp containing more than 0.3% THC (dubbed “hot hemp”) in state-administered tests is technically considered marijuana (a Schedule 1 controlled substance) and must be disposed of.
After the IFR was released, hundreds of growers and other industry stakeholders opposed the mandated 0.3% THC limit during two separate public comment periods offered by the USDA, with some industry organizers advocating an increase to 1% THC—the concentration threshold for cannabis to have a psychotropic effect or an intoxicating potential, according to the Congressional Research Service’s (CRS) 2019 fact sheet. In fact, Kentucky lawmakers introduced a bill last week that would increase the allowable amount of THC in hemp from 0.3% to 1%.
“The 2018 Farm Bill, which provides authority to USDA for the domestic production of hemp and provided USDA with a framework of requirements, removed hemp from Schedule I of the Controlled Substances Act, and defined hemp as the plant cannabis sativa L., or any part of that plant, including seeds, derivatives and extracts, with a THC concentration of not more than 0.3% on a dry-weight basis,” a USDA spokesperson told Hemp Grower. “What this means is that the THC concentration limit for hemp was established by the law and is not a requirement that can be changed by regulation but would require congressional action.”
With that in mind, it was no surprise when 0.3% remained the legal limit for hemp in the USDA’s final rule, says Joy Beckerman, principal of Hemp Ace International, which provides professional hemp consulting, legal support and expert services.
The legal framework of the 0.3% THC limit was laid out in both the 2018 and 2014 farm bills.
“The regulations cannot override what’s written in law,” Beckerman tells Hemp Grower. “In order for a regulation to override what’s written in law, the law needs to change. To ask the USDA to override the U.S. congressional definition of hemp is not something that they had the authority to do.”
Jason Waggoner, the vice president and general manager of Colorado-based EcoGen Biosciences, a leading vertically integrated wholesale CBD manufacturer and supplier of hemp-derived ingredients in the U.S., had a similar take on the USDA’s role in the legal definition of hemp.
“My opinions on that particular level, relative to what the USDA is doing, are probably moot because that’s not their prerogative,” he said. “They’re the regulatory body to enforce the law. So, until such time that that law is revised, I think their hands are probably tied relative to that number.”
While increasing the 0.3% legal limit was out of the USDA’s hands, the final rule did add some stability for hemp industries by providing several improvements based on feedback it received on the interim final rule (IFR), said Eric Steenstra, president of Vote Hemp, an advocacy group based in Washington, D.C.
“I am pleased that USDA listened to feedback from the hemp industry and farmers as they finalized regulations for hemp production,” Steenstra tells Hemp Grower. “The new rules mean less crops will be non-compliant, protecting farmers from crop destruction and losses. This and other helpful provisions make the new hemp rules a significant step in the right direction.”
Some of final rule changes include an expanded harvest window, alternative options for disposing of or remediating hemp, and an increased standard of negligence.
Aside from the legal parameters in the final rule, the 0.3% limit isn’t something that necessarily has any scientific reason to back it up, says Deepank Utkhede, the chief operations officer of Vantage Hemp, a large-scale extraction facility located in Greeley, Colo., which produces a full range of CBD products for customers across the United States.
“I’m an advocate to increasing it, period,” Utkhede says about the legal THC limit for hemp. “The 0.3% was arbitrary. It wasn’t based on any science or data to say, you know, ‘At 0.4%, you’re going to get high.’ It was just a number that was chosen at random by all accounts. So, it’s hard to justify it when there’s no data to support it.”
Beckerman says the genesis of the 0.3% threshold that differentiates between what is considered industrial hemp and marijuana goes back to 1976, when Canadian horticulturalists Ernest Small and Arthur Cronquist published an article in the journal Taxon, entitled “A Practical and Natural Taxonomy for Cannabis.”
In the article, Small and Cronquist said, “It will be noted that we arbitrarily adopt a concentration of 0.3% delta-9 THC (dry-weight basis) in young, vigorous leaves of relatively mature plants as a guide to discriminating two classes of plants.”
Beckerman says the key words in that article are “arbitrarily adopt.” Forty-five years later, lawmakers and public policy institutes, like the CRS, are still referencing Small’s article while shaping the law of the land.
What are the implications of increasing the allowable amount of THC in hemp?
Specifically, for testing hemp that’s growing in the field, increasing the legal limit would affect both international trade as well as economic stability for farmers, Beckerman says. For example, Canada and the European Union both have legal THC limits of 0.3%.
“That’s the first thing that we need to know and understand as an implication, is that we want to be able to trade internationally,” Beckerman says. “We don’t want to shoot ourselves in the foot by making it so that other countries don't want anything to do with American hemp because we have the 1% versus their 0.3%. So, we do need to be mindful of that.”
Beckerman says she is an advocate of changing the law to remove decarboxylation testing in the field. This process activates compounds such as THC, which can happen through heat or certain oxidation. In short, that method of testing imposes a “total THC” standard, which includes not only delta-9-THC—the primary intoxicating compound of cannabis—but also tetrahydrocannabinolic acid (THCA), a non-psychoactive compound of the plant that becomes THC when in post-decarboxylation.
While the USDA wrote the requirement to test for total THC into the final rule, the 2018 Farm Bill does not define hemp by total THC levels—only delta-9-THC. That means the USDA is interpreting the 2018 Farm Bill to include total THC.
The majority of farmers wouldn’t “pop hot” if they didn’t have to post-decarboxylate and quantify the THCA in their plants, Beckerman says.
Another concern with changing the law to increase THC’s allowable amount to 1% is massive overproduction of extract varieties, Beckerman says.
That said, if the law is changed to increase the legal THC limit to 1%, then farmers would be encouraged to continue to grow extract varieties, which will not provide them with economic stability, Beckerman says.
“And we need to protect our farmers,” she says. “At the same time, we can’t say, ‘Hey farmers, start growing fiber hemp. Just grow fiber hemp. Stop growing extract hemp.’ Really? Who are they going to sell it to? Where are the fiber processors?”
The future of hemp is not in the extract, but rather in the oil seed and the fiber of the cannabis plant, Beckerman said. But more fiber processors are needed to cater to that marketplace.
“They’re coming, let me tell you,” she said. “We’ve got five ones in the United States that are coming in, and there’ll be more, but, as it sits today, am I going to tell a farmer in the state of Washington [to grow fiber hemp] when the nearest fiber processing plant is in Montana and it hasn’t been built yet? No.”