It would be helpful to hear from as many of you as possible from different states what are the current laws pertaining to THC. While many states appear to still be using the .3% Delta 9 standard, it looks like others are moving towards a .3% TOTAL THC standard.
As the new crop is moving towards harvest this issue will become more and more critical for both State testing and interstate transport.
All States can make their own state laws of course, but Federal law makes provisions via the 2018 farm bill based on “Delta 9 THC” not “Total THC” being .3% THC on a dry weight basis. It is possible that person(s) or companies could be prosecuted based on the Federal Controlled Substances Analogue Act, though we don’t know of any precedent setting cases that we can learn from.
We wish more people would chime in on this post!
FresBros thank you for adding your voice to this important topic. Part of the motivation for this post was a request from a Montana biomass buyer stating that any material they were buying needed to be under .3% Total THC to align with their understanding of both State and Federal laws.
In KY it’s total THC, in Michigan we have been asked to regulate delta 9. I’ve also seen Colorado biomass adhere to the total THC and some farms in Oregon. What I always do as a licensed hemp handler is check the hemp association website for the state and call the lab which the testing was preformed. These two quick steps assist with many compliant and happy buyers and sellers!
ACT No. 164 of the Louisiana Legislature signed by Governor Edwards, (not that Edwards), on June 6, 2019
(10) “Industrial hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol (THC) concentration of not more 0.3 percent on a dry weight basis.
While that is the definition used in the Farm Bill, the confusion within that very definition is part of the legal quandry. When it states ”acids” it refers to THCa and then goes on to list Delta 9 THC. Legal experts have a hard time interpreting that. Colorado uses ”post” decarboxylation results which ends up being the same as Total THC. Go figure.
We are waiting to hear back from our legislators regarding this very topic in CT. One definition seems to support the THCa inclusion as Zev you mentioned. On the other hand some Department of Consumer Protection documents state “”THC” means delta-9-tetrahydrocannabinol”. I will post once the decision is made.
Any advice on nudging legislators to just use delta 9 would be appreciated.
It appears that at least one delay in the release of USDA guidelines for states is due to their grappling with the Farm Bill‘s requirement for a national THC testing protocol “using post-decarboxylation or other similarly reliable methods.”
This leads me to believe that measuring for TOTAL THC will be the national standard once the dust settles.
CT has decided and for now it looks like Total THC.
New York has apparently signed the law into effect, but this year they released notice far too late for the current harvest, so it will take effect next year.
I’ve also heard from the Dept. of Agriculture that the law only constitutes for the crop grown WITHIN the state where the law takes effect.
EXAMPLE: Crops grown in NY next year must be under 0.3% total THC, however, I would still be able to purchase a crop from Colorado, over the 0.3% total THC constraint, to resell in NY.
How did they come up with the .3% anyway? I’ve never seen any data to support this number.
Amy and Others,
The.3% limit was created many years ago before high CBD (hence higher THC) hemp did not yet exist. It was a number that was determined to definitely be below the threshold where a consumer of the hemp flower from the industrial hemp varieties would not be affected in any way.
It is the standard in many countries (the EU is .2%) and in Canada and I feel it is time to relook at it.
I posted an extensive paper publilshed in 2003 that hits on this at this link.
I just went to a seminar at an environmental law firm in Washington DC this past week. The federal definition of hemp is “under .3% delta-9 on a dry weight basis”. This is was passed by congress, signed by the president, it is law. The USDA coming in and muddying the waters by suggesting Total THC is in conflict with federal law. The team of lawyers suggested going forth, make sure your delta-9 is well under the 0.3%.
I don’t understand why total THC should be 0.3% or less when Delta-9 THC being 0.3% or less is compliant for the most part. If total THC is to be 0.3% or less this will eliminate many or most of the current strains on the market. This change is not going to be good for our hard working Hemp farmers. Farmers should be allowed to sell out inventory before changes are made that will prevent any previous harvested crops that exceed 0.3% total THC to be sold.
The powers that be are terrified by THC since it is still a Schedule 1 Drug. Don’t get me started.
As we all know when you add some heat to THCa it converts (at least .877% of it does) to THC Delta 9. The thinking of the USDA and their “advisors” at the DEA are wanting to make sure that the potential total THC Delta 9 is at or under the arbitrary .3% no matter what. Please take a few minutes and submit a comment to the USDA website to let them know that not only is this totally unnecessary but it could easily have devastating effects on the industry if they implement this with serious enforcement in 2020.
These are the 3 places where you can submit your comments!:
Comments are being received until January 29th
-The Regulations.gov website
-Mail: Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS; USDA; 1400 Independence Ave. SW, STOP 0237; Washington, DC 20250-0237.
Here are a couple more voices on this issue from the recent public comment period hosted by the USDA:
Dustin Coleman, hemp farmer, Michigan:
“Eliminating the delta-9 test for CBD will destroy the entire hemp industry, as it is now, and will prevent farmers from taking the risk in the future. The 0.3% standard was based on delta-9 testing.
As a current hemp farmer, following all rules and regulations carefully, I feel this an intentional slap in the face of the small farmers who risked it all, just for our government to introduce rules that cannot possibly be followed. Delta-9 testing should be reinstated, or new legal levels should be determined based on the advised testing”.
Jeremy Sauerssig, Minnesota:
“As a first-year hemp farmer and processor … I have quickly observed the THC levels around 1% when the CBD levels peak. This is the same for nearly all of the 12 varieties I grew.
The 0.3% limit is fine if you give 30-40 days to harvest afterward. The 15 days is fine if you raise the total THC limitations. Nowhere can I see the 0.3% and 15-day rules actually working for any geographical location”.
It is highly important that our voices are heard by the USDA.
I am a first year hemp farmer in Michigan and I’m very confused by the quoted comment from Dustin Coleman. Michigan is already a delta 9 testing state but Michigan also requires decarboxylation prior to testing, so essentially Total THC since THCa is converted during this process. Michigan is following the USDA rules already. Am I missing something or are they missing something?
The effect of the USDA rules in 2020 is going to depend on two things:
1.How much they are willing to incorporate the huge number of comments they have received and,
2. The level of actual enforcement they are capable of overseeing.
At this point I would encourage farmers to assume that Total THC of .3% will remain in the rules but given the lack of testing infrastructure, I do not see how they are going to successfully test all farmers in the limited timeframe using DEA Certified testing facilities.