Federal Government Issues Temporary Rules For Hemp Industry, Raising New Questions

Oct 31, 2019

Maine's fledgling hemp industry has been anxiously awaiting regulatory guidance from the federal government, and now the U.S. Department of Agriculture has issued some temporary rules. But some of the initial guidance is raising questions for both growers and state regulators.

The draft rules outline the steps that individuals, states and native tribes must follow to grow hemp in compliance with federal law.

"So as I read through the 161 pages, I certainly see some things that may require us to make some changes with our program," says Gary Fish, who oversees the state of Maine's hemp program. The program licenses and monitors the more than 170 farmers that grow industrial hemp, destined mostly to supply the production of products made with cannabidiol or CBD.

"Right now what we're looking at doing is to prepare some comments that will go to the U.S. Department of Agriculture, to hopefully help them make amendments if need be to help the states manage their programs better," Fish says.

The Maine Department of Agriculture is declining to be more specific about the potential compliance problems created by the new federal rules, but some in the state's hemp industry are raising concerns.

"If we emulate these rules, word for word, and if they're accepted as is, I foresee a bottleneck in testing," says Erica Haywood, the managing member of LoveGrown Agricultural Research in Farmington, which grows hemp.

Haywood says she is still poring over the document, but the section on cannabis testing immediately jumped out to her.

"The rules seem to require that a DEA permit would be on the agenda for any laboratory offering certification testing services for hemp," she says.

Haywood says that, as it is, there are relatively few labs across the country that specialize in cannabis certification and even fewer that are registered with the U.S. Drug Enforcement Administration. But testing is critical to the hemp industry.

"Because in the event that you have a sample that has over 0.3% THC, you are now in possession of a Schedule 1 substance.”

Nick Des Lauriers of ProVerde Laboratories, which has an office in Portland, says that under Maine's existing hemp rules, any hemp samples that test over the legal limit for THC, the psychoactive substance in marijuana, must be destroyed in a manner approved by the Department. But he says it is not clear how the new federal DEA certification will affect labs that might also have high THC marijuana coming legally through the door.

"So we do a lot of testing for consumers as well, folks who want to know that they're getting what they paid for and if it’s safe to consume,” he says. “This would prohibit us from doing those types of testing. So we now are taking a deeper dive into how we can meet those DEA registration requirements, while not shutting out all those other folks who depend on us for analytics."

A bigger problem, however, says Des Lauriers is that the USDA has neglected to define "dry weight" as it pertains to THC content. "Why that's significant is cannabinoids are given as percent by weight, so the more moisture you remove, the more relative percentage of cannabinoids that you're going to find because you're taking out other weight," he says.

In other words, cannabinoids and THC levels will all likely test higher in a plant that has more of its moisture removed. The state has been directing test labs to use a standard of 8-12% moisture. Any lower than that, and producers say the product has little to no commercial value.

The interim final rule becomes effective upon publication in the Federal Register, which is expected this week. The USDA will then open a public comment period for 60 days, and will craft a final rule in the next two years.

Originally posted 4:41 p.m. Oct. 30, 2019