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Issuance of USDA Final Rule on Hemp Production

Two years after the passage of the Agriculture Improvement Act of 2018 (“2018 Farm Bill”), the USDA has finally issued the Final Rule (FR) regulating hemp production of hemp in the US. This is a more favorable and modified version of the Interim Final Rule (IFR). Despite these improvements, undoubtedly, industry stakeholders maintain numerous concerns and are eyeing for improvements with the incoming Biden administration. Here are some highlights of FR:

1. Producers must destroy hemp that exceeds the requisite THC negligent threshold (0.5% under IFR) The FR raises the THC negligence standard 1%.

2. Due to a shortage of DEA registered labs, the DEA will now allow non-DEA registered labs to test hemp until January 1, 2022 and is committed to issuing more registrations labs seeking to become DEA-registered labs for hemp testing.

3. The time frame required for sampling of hemp was extended from 15 to 30 days with the objective to prevent backlogs in testing.

4. Industry stakeholders advocated for a greater part of the plant and a smaller sample to be tested. The FR allow a “performance-based” approach to sampling and plans must be submitted to USDA for approval.

5. Unfortunately, testing still looks for total THC, not just delta-9 THC.

6. “Hot hemp” can be eradicated on-site.

You may read the full text of the final rule here.