Win or Loss? The USDA’s Final Rule on Hemp

updated March 30, 2021‍

In this post:

• Interim Final Rule vs Final Rule changes
• What Does the USDA's Final Rule Mean for Florida's Hemp Program?

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The United States Department of Agriculture’s (USDA) Final Rule on hemp took effect on March 22, 2021, after more than a year of debate surrounding its Interim Final Rule (IFR). Since publishing the IFR in late 2019, the USDA received a flood of messages from hemp cultivators, processors, and advocacy groups demanding a more inclusive approach. Among the complaints, hemp proponents argued that IFR mandates such as the 0.3% THC limit and testing and sampling requirements would stifle industry growth.

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The US Small Business Association’s Office of Advocacy sent letters to the USDA saying the Interim Final Rule was so restrictive that it would not allow most farmers to participate in the program. Following recent updates, however, the SBA said that it’s “pleased that the agency considered and acted on concerns raised by small businesses and ultimately hopes that the changes made in the final rule will allow small businesses to be successful in the hemp industry.”

Now that the rules are set let’s explore what’s changed and what hasn’t since the IFR as we move into a new era of hemp regulations. Start date–March 22, 2021.

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Interim Final Rule vs Final Rule Changes

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Interim Final Rule Proposal FINAL Rule Changes

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‍Agents must send hemp clippings to a designated laboratory within 15 days before the anticipated harvest.

Agents must send hemp clippings to a designated laboratory within 30 days before the anticipated harvest.

Hemp farmers must work with DEA-licensed third-party laboratories as soon as the Final Rule is established. Hemp farmers have until January 2022 to start testing with DEA-licensed third-party laboratories.

The USDA does not offer remediation options for samples that tested above the THC limit. “Hot crops” must be destroyed or disposed of.  The USDA specifies on-site remediation options allowing farmers to sell the crops, assuming they don't test hot again. The FR also clarifies what “disposal” of hot crops means. Hemp farmers have a lower margin of error in THC test results before their crop is deemed illicit (.5%)Hemp farmers have a wider margin of error results before their crop is deemed illicit (1%).

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‍**The margin of uncertainty does not change the legal THC limit, which is still .3%.

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‍Approved sampling agents must collect hemp samples from every lot, following strict guidance on procedure and chain of custody. States and tribes can establish performance-based sampling methodologies, which allows the freedom to determine their own methodology. States will need to include details of their sampling methods for the USDA to approve.

IFR mandated taking samples from the "top third" portion of the plant.

Regardless of "specific performance-based sampling requirements," sampling agents must now cut 5-8 inches from the main stem (including the leaves and flowers), terminal bud (that occurs at the end of the stem), or the central cola (cut stem that could develop into a bud)

What Does the USDA's Final Rule Mean for Florida's Hemp Program?

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Florida's Department of Agriculture & Consumer Services (FDACS) initially drafted a hemp program that looked a lot like today's Final Rule. But the department updated the terms to stay on par with the USDA's Interim Final Rule. Now that the USDA issued its final rules, FDACS is hard at work revising Florida's hemp program to match.

In the next few days, FDACS will publish a new version of the hemp program that:

• Extends the testing period from 15 days to 30 days before harvest
• Revises the sampling requirements to allow agents to cut more of the plant
• Continues enforcing the DEA lab requirement, while allowing exceptions until January 2022 for specific farmers that apply for waivers.

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In a perfect world, advocates would have liked the Final Rule to include more changes. For example, proponents fought to raise the legal THC limit from .3% to .5% or 1%–not just the margin of error. But the USDA repeatedly said they couldn’t change the limit because the federal government defined “legal hemp” in binding legislation set forth by the 2018 Farm Bill. Hemp industry proponents also hoped the THC limit would apply only to total Delta-9 THC.

However, the USDA retained its determination that “total THC” would also include the “potential conversion of tetrahydrocannabinol acid (THCA) into THC.”

The USDA’s Final Rule on hemp isn’t perfect. But the changes allow state regulators more freedom to establish cultivation, testing, and sampling rules that support farmers within their regions. That’s a huge step forward as this budding industry continues to evolve.