Hemp CBD Laws: Will Congress Elevate THC Restrict For Hemp To 1%?
As reported by Hemp Grower magazine, Senator Rand Paul of Kentucky introduced legislation on December 15 to change the definition of hemp from 0.3% THC to 1% THC. The bill would also make other important changes to the USDA’s tentative final rule that would affect hemp producers, processors, manufacturers and shippers. The legislation is called the Hemp Economic Mobilization Act (the “Hemp Act 2020”). The 2020 Hemp Act proposes four major changes to the federal laws that currently regulate hemp production.
First, the 2020 Hemp Act would change the federal definition of hemp by deleting “0.3 percent” and adding “1 percent”. As hemp companies know, the 2018 Farm Bill defines hemp as cannabis sativa with a delta-9 THC concentration of no more than 0.3 percent on a dry weight basis. The USDA then passed a “Total THC” testing requirement that put additional strain on growers and others in the industry.
As we wrote back in January 2019, the 0.3% threshold was set in the 1970s by a Canadian researcher who laid a 0.3% dividing line between hemp and marijuana in order to establish a biological taxonomy. The dividing line should never be used as a practical measure for countries to differentiate between hemp and marijuana for commercial purposes. We at the Canna Law Blog wholeheartedly support the change in the threshold from 0.3% to 1%.
Second, the 2020 Hemp Act would require testing of hemp products rather than the hemp flower or plant itself. Under the USDA transitional rule, growers must test hemp plants within 15 days of the expected harvest. As we have explained, in certain circumstances this can be an impossible obstacle for producers. The Hemp Act of 2020 proposes an essential legal regulation. Under current law, a state or tribal plan must contain a “test procedure”. . . Delta-9-tetrahydrocannabinol concentration of hemp produced in the state or territory of the Indian tribe ”(italic). The 2020 Hemp Act would replace “hemp” with “products made from hemp plants” (again in italics).
That would be a big change – essentially, hemp processors and product manufacturers would have to adhere to THC tests instead of growers. What cannot be seen is how this change would affect hemp growers who do not sell their crops to processors or manufacturers, such as those who sell hemp flowers directly to consumers. (Specifically, smokable hemp flower sales are illegal in Kentucky, home of legislature Rand Paul.)
At first glance, the bill looks like such hemp does not need to be tested (even in states where smokable hemp is legal) unless “products derived from hemp plants” are sold as buck and cut flowers Interpreted by consumers. However, this reading seems to contradict the intent of the proposed change, as Rand Paul’s office describes the legislation as “providing a legal solution to this problem” [the 15-day harvest testing requirement]by testing the final hemp product in place of the hemp flower or plant itself, [which would] Relief for farmers. “We hope and expect that this ambiguity will be resolved as the legislation moves forward.
Third, the 2020 Hemp Act would require a copy of the Seed Certificate when moving hemp from farms to processing plants to certify that the hemp was grown from seeds with no more than 1% THC on a dry weight basis. This would be a new requirement, the purpose of which is to protect hemp shipments from law enforcement seizure, since the hemp appears to be marijuana.
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Fourth, the 2020 Hemp Act would provide for a statutory measurement of uncertainty (“MU”) in tests of no more than 0.075% and offer growers and processors more convenience. Currently, neither the law nor the provisional regulations give clear guidance on the ME applicable, although the regulations use an example of +/- 0.05%.
RELATED: The Hemp Standard Is 0.3% THC – And That Should Be Changed
This problem affects laboratory tests. Laboratories must explain the MU associated with the test to determine if a particular sample is within “acceptable hemp levels”. The USDA gives an example: if a test shows 0.35% THC with 0.02% ME, the range is 0.33% to 0.37%, so the sample does not meet the definition of hemp. According to the 2020 Hemp Act, a sample that is tested at 1.074% THC can still qualify for hemp if the ME is 0.075%.
An important topic that is not addressed in the 2020 Hemp Act is the liquid chromatography factor 0.877. This is related to the requirement that hemp must be tested for all of its THC and how to do it. Here you can read more about it.
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Overall, however, the passage of the 2020 Hemp Act would be a boon for the hemp industry. You can sign a petition here to support the move from 0.3% THC to 1% THC and of course reach out to your congressional representatives to express support for the bill.
For more information on hemp CBD, as well as laws and litigation affecting the industry in the US and internationally, please visit:
Jesse Mondry is an attorney with Harris Bricken. This article was originally published on the Canna Law Blog and republished with permission.