Different from the cannabis industry, the hemp industry, including industrial hemp, is subject to the federal laws set forth in the hemp regulations of the U.S. Department of agriculture.
On October 29th, 2019 the U.S. Department of Agriculture (USDA) finally released its interim final rule for the production and testing of industrial hemp plant material.
The next step was to enter these hemp regulations into the Federal Registrar, where they sat for a 60-day open comment period. After the 60-day period the “draft” rules were written into federal law, requiring full implementation by harvest season 2021.
While today’s draft rules are not 100% final, they are a major step in the full implementation of the 2018 Farm Bill. That’s why it’s vital for all hemp growers or those considering entering the booming hemp industry to stay up-to-date so they can be ready and compliant. While the team at ACS Laboratory continues analyzing the full scope of the new rules, we wanted to start by highlighting procedures surrounding hemp samples for delta9 THC testing.
In this post:
Rules for state & tribal plans
USDA's federal rules
Other testing requirements
State & Tribal Plans
According to the U.S. Department of Agriculture’s interim final rule for hemp flower testing, if a state or tribe wants to have primary regulatory power over hemp production, it must submit a plan to the USDA for approval. State plans must include procedures for procuring hemp samples as well as conducting reliable analytical hemp testing to ensure that it does not exceed the acceptable percent THC level (0.3%).
As of today, several states have written hemp regulations that they have or will submit for U.S. Department of Agriculture approval. Florida in particular, has completed its rulemaking process and launched its industrial hemp program in January, 2020.
What are the Guidelines for Hemp Sampling and Chain of Custody?
USDA hemp regulations indicate that only USDA-approved sampling agents or local law enforcement can collect samples for hemp testing to ensure proper “chain of custody.” As part of their hemp plans, States and Tribes must have a process in place to designate sampling agents to collect hemp samples within their jurisdiction. In Florida for example, designated analytical testing laboratories are sanctioned as approved hemp sampling agents.
Under this regulation:
Hemp farmers must arrange samples to be collected by an approved sampling agent
Agents must submit a completed sample collection / chain of custody form and send hemp clippings to a designated laboratory within at least 15 days prior to anticipated harvest.
Hemp samples must be sent to a DEA registered high quality laboratory for testing.
What are State Requirements for Hemp Testing?
Unlike illegal cannabis plant material, which contain high levels of THC, industrial hemp flower must contain a fraction of this psychoactive compound in order to be legally processed and sold in the U.S.
That’s why the USDA requires accurate analysis of delta 9-THC concentrations through strict testing procedures:
Labs must use reliable methods, such as high performance liquid chromatography mass spectrometry for delta9 THC potency testing.
All samples must not exceed three-tenths Total THC on dry weight analysis.
Total 9-THC concentrations must be measured with the following equation: THC-A*0.877 (post-decarboxylation).
Ultra high performance liquid chromatography is the preferred method due its ability to test hemp at room temperature. This method also accurately tests for THC-A, which is required for accurate Delta9 measurement.
Alternative analytical testing services will be considered if they are proven to through reliable methods.
What If the Sample Tests Higher than .3% THC?
It’s not uncommon for two hemp samples within the same plot to receive different results in testing, That’s partly why licensees may request retests by the laboratory conducting the analytical testing services.
However, if retested hemp still exceeds the acceptable delta9 THC concentration, they must be disposed of. The USDA requires:
States to include plans for disposal of non-compliant hemp.
However, the results must have a high degree of certainty before any crop is disposed of. In other words, states can accept test results above .3% (three-tenths) within a certain margin of error as determined by the state.
For example, if a laboratory reports a result as 0.35% with a +/- 0.06 margin of error, it is still legally considered industrial hemp under this regulatory framework.
What are the Laboratory Requirements for State Hemp Programs?
Labs should meet the AOAC International standard method performance requirements for accurate analysis and testing methodologies.
Labs must use chromatographic techniques, exhibit good laboratory practices, and deliver reliable results.
Laboratories must report the measurement of uncertainty as part of any results.
Labs must obtain a DEA registration prior to testing.
USDA is also considering requiring labs to comply with “Laboratory Approval Program (which will go beyond ISO/IEC 17025 accreditation).
Approved laboratories are posted on the USDA Domestic Hemp Production Program website.
...So what if a state does not have an approved plan?
USDA Federal Hemp Requirements
If a state does not have hemp regulations in place, or their plan has not yet been approved, hemp farmers can still apply for a hemp license directly with the U.S. Department of Agriculture. In these cases, hemp growers must comply with USDA’s regulatory framework for sampling and high quality testing.
USDA Procedures for Hemp Sample Collection / Chain of Custody
Federal law dictates only USDA-approved sampling agents or Federal, State or local law enforcement authorized by the USDA may collect and transport hemp samples.
Hemp samples must be collected by a USDA approved sampling agent.
All sampling agents must complete training before conducting clipping.
Hemp farmers must pay any fees associated with sampling and chain of custody.
Growers must follow U.S. Department of Agriculture guidance on sampling procedures and submit a completed chain of custody form.
Procedures include collecting a minimum number of plant specimens.
Samples must test at or below .3% delta9 THC based on post-decarboxylation results.
Hemp samples must be reported on a dry weight basis.
When Samples Tests Higher Than .3% THC
Hemp growers may request that the non-compliant sample be retested (at their own cost).
Hemp samples exceeding acceptable 9-THC concentration level must be disposed of.
Farmers must arrange for disposal of the entire lot by an authorized state or federal enforcement officer.
Growers must document and submit proof of disposal to the USDA following completion.
USDA’s Laboratory Requirements
All third party laboratories must be registered with the DEA.
USDA is also considering requiring requiring labs to obtain an additional USDA license (see above).
Approved testing methodologies include gas or liquid chromatography (or a similar high quality method).
Ultra high performance liquid chromatography is the preferred method due its ability to accurately determine Delta-9 concentration at room temperature.
Labs will be required to share test results with hemp growers as well as the and the U.S. Department of Agriculture.
USDA provides instructions on how to submit results here.
Labs may provide results in any manner so that one can produce a copy of results. Web portal or electronic mail is preferred.
What Other Tests are Required?
According to the USDA’s interim final rule, hemp farmers are only required to test for delta9 THC concentration. That said, it’s in a farmer’s best interest to test industrial hemp for all contaminants as well as moisture content if they want to produce a high quality plant that commands profitable contracts. Moisture content testing is important because it indicates risk of mold development, which can destroy entire yields.
Moreover, testing for heavy metals and pesticides is extremely important because these contaminants are toxic to humans and can severely reduce the value of the plant. While hemp growers are not legally required to test for moisture content, pesticides, heavy metals or other contaminants according to federal regulations, they risk losing business if they don’t. Once industrial hemp changes hands from farmers to processors via such contracts, these companies will have to follow state level guidelines for testing.
Thus manufacturers of ingestible, smokable, or topical hemp such as CBD products will need to be sure their products are safe before selling to consumers. These rules vary by state, but generally always include heavy metals, residual solvents, pesticides, mold and mildew.
At ACS Laboratory we’re at the forefront of the latest federal regulations. We are already submitting electronic results, utilizing the best in class chromatographic techniques, reporting THC-A and Delta9 THC and exceeding the minimum requirements through our extensive experience and ISO/IEC 17025:2017 accreditation. Whether we are conducting cannabis testing or industrial hemp testing, growers can feel confident that the results will be compliant with current and future regulations.
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