Ag Policy Blog

States: USDA's Hemp Rules Are Unworkable

Chris Clayton
By  Chris Clayton , DTN Ag Policy Editor
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Hemp grows in this irrigated field in Colorado. State officials and farmers that have a history growing hemp are now raising concerns about the stringent details of USDA's testing rules for hemp. (DTN file photo)

The Trump administration has built a track record of reducing or eliminating regulations, yet farmers and state officials are saying the new USDA rules for hemp are too onerous and would harm hemp production already happening in their states.

Complaints are coming in from several states as USDA has extended the comment period for its interim final rule until Jan. 29.

Kentucky, the first state to submit its regulatory plan for hemp to USDA after the 2018 farm bill was signed, is now being urged by the Kentucky Hemp Industries Association to forego USDA's rule in 2020 and stick with the rules written under the 2014 pilot plan. Initially reported by a Kentucky business journal, the Kentucky Hemp Industries Association (KYHIA) wrote state Agriculture Commissioner Ryan Quarles last week outlying the association's concerns about USDA's rule. The letter states USDA is planning to over-regulate the infant hemp industry.

"Hemp farming in Kentucky is still in its early stages and federal regulation of our farmers could have a serious detrimental impact on the Kentucky hemp industry if certain aspects are not addressed," the KYHIA wrote Quarles.

The big problem lies with issues in the testing regime for THC, the principal chemical that generates the high in marijuana, and is limited to just .3% in hemp under the farm bill. The Kentucky Hemp Industry Association is concerned that variations in a tiny sampling of THC could cause the entire crop to be destroyed. A one-acre field with as many as 30,000 plants should not be lost because of the test from a single plant, the KYHIA stated. The group wants USDA to conduct some testing on measurements of uncertainty in a hemp crop.

Another problem is the limited 15-day period USDA has established between sampling of a crop and harvesting it. KYHIA stated it would likely at least a week for the test results to come back in a best-case scenario. Yet, the crop cannot be harvested until the results are returned. KYHIA noted harvest can take weeks and is a labor-intensive endeavor.…

Kentucky growers aren’t the only ones to weigh in with concerns. The Minneapolis Star-Tribune reported that state officials there "are raising alarms" over the new federal rules and also warning that USDA's rules could "punish farmers for even the slightest errors."

Thom Peterson, Minnesota's Agriculture commissioner, wrote USDA last week stating that the USDA rules are "unworkable" and would put the state's "promising hemp industry in jeopardy," the Star-Tribune reported. Minnesota saw the number of growers jump from 51 in 2018 to 550 in 2019, and the number of acres grew to about 8,000, the article stated.

But Peterson cited those same testing rules as a challenge, as well as the USDA requirement that field testing samples have to be sent to a DEA-registered lab, which Minnesota does not have. Nor does the state have enough inspectors to sample thousands of acres in a short time span.

Further, the problem with seed genetics right now make it hard to get THC under .5%, the threshold that would lead to a hemp crop getting destroyed. About 13% of Minnesota tested samples were above that THC level, and averaged about 1.07% THC content. Peterson wants USDA to raise the testing level to 1% THC.

Like Kentucky is considering, Minnesota, Wisconsin and other states may stick with their pilot program rules for 2020 because of the USDA rules right now.…

Hugh Weathers, South Carolina's Agriculture commissioner, also sent similar comments to USDA. The testing and harvesting window is too narrow and there is a shortage of laboratories with experience to handle the likely volume of samples.

“We believe that several provisions in the interim final rule lack the flexibility necessary for our farmers to be profitable and for SCDA to be able to implement a successful hemp program,” Weathers wrote, according to Lee Publications in South Carolina.…

Associated Press also wrote a similar article, citing a North Carolina farmer who took 45 days to harvest one acre, after waiting two weeks to get test samples back. The 15-day window is just not feasible, the farmer stated.…

Forty six states have legalized hemp production in some manner, but many states are still working on rules or plan to have their rules fall directly in line with USDA's final rules.

As of Monday, USDA's proposed rule has received 1,726 comments at the federal regulatory portal,…

Peterson Introduces CBD Bill

In a related topic, House Agriculture Committee Chairman Collin Peterson, D-Minn., introduced a bill on Monday that would allow hemp-derived cannabidiol (CBD) to be marketed in dietary supplements. Currently, FDA has only approved a CBD product as a drug for use in certain instances. In the meantime, CBD products are now being marketed everywhere.

The bill would also require a study and report from the U.S. Department of Agriculture, which oversees the production of hemp, on the regulatory and market barriers for farmers engaged in hemp production.

“The last two farm bills were landmark successes for hemp, but we are still very early in this process, and growers need regulatory certainty,” Peterson said. “This bill will allow FDA to regulate CBD that comes from hemp as a dietary supplement, providing a pathway forward for hemp-derived products. It would also identify barriers to success for hemp farmers, informing growers and policy makers of the challenges facing this new industry.”

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6/13/2020 | 7:09 AM CDT
Although the Bluegrass State's economy is more complicated than many people realize, the traditional industries of agriculture and coal mining continue to play a major role. The agricultural and coal mining industries have experienced tremendous change over time, but they remain two pillars of the state's economy. To produce hemp, you first need to be licensed or authorized under a State hemp program, a Tribal hemp program, or the USDA hemp program. The program you are licensed under depends on the location of your hemp growing facility. Azriel from