By: Hemp Industry Team at Frost, Brown, Todd
On October 29, 2019, the U.S. Department of Agriculture (USDA) released a draft version of the interim final rule (IFR) for the production of hemp in the United States. The draft version of the IFR is available here. The USDA is encouraging industry stakeholders to submit comments on the IFR.
In general, the IFR specifies the provisions that a State or Tribal hemp plan must contain to be approved by USDA. It also establishes the USDA federal plan that will regulate the production of hemp in States and Tribal territories that do not have a USDA-approved plan.
We are continuing to review the IFR closely, but we have already taken note of the following important provisions:
State and Tribal plans must contain certain procedures for sampling and testing hemp for THC levels.
• Samples must be taken within 15 days prior to harvest.
• Samples must be taken from flower material, but the IFR does not specify which part of the flower material or contemplate a homogenized flower material sample.
• Samples must be taken to a DEA-registered laboratory for THC testing. USDA is also considering requiring all laboratories testing hemp to have ISO 17025 accreditation.
• Samples must be tested using post-decarboxylation or other similarly reliable methods for total THC concentration. Reliable testing methods include gas or liquid chromatography with detection. Alternative sampling and testing protocols will be considered if they are comparable and similarly reliable to the USDA plan.
• Laboratories must report THC results based on delta-9 THC concentration on a dry weight basis and with a measurement of uncertainty. If the measurement of uncertainty results in a range or distribution that includes 0.3%, the material meets the acceptable hemp THC level and is compliant.
• If a sample exceeds the acceptable hemp THC level, the material is deemed marijuana and must be disposed of. There is no provision in the IFR for using non-compliant material as feedstock or for any other purpose.