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Courtney N. Moran, LL.M. Featured for Federal Advocacy Campaign

Aug 5, 2020

Hemp CBD industry pushes for a 1% THC solution

Hemp industry voices are alerting hemp backers—especially farmers and operators—to petition now to change the definition of hemp from the 0.3% maximum THC content to an even 1%.

Imminent action is required because the U.S. Department of Agriculture’s interim final rule (IFR) is set to go final in time for the 2021 planting season, which means by February 2021 at the latest.

“We have to get this right—now—for how this industry is going to be regulated,” said Courtney Moran, founding principal of EARTH Law and chief legislative strategist for Agricultural Hemp Solutions, which is working to set appropriate legal policy for hemp development. “Collective action now is essential to protect our future and to make sure hemp is America’s next commodity cash crop.”

Many in the hemp industry see the USDA’s IFR as starting from a position that hemp is closer to illegal marijuana than tomatoes or corn. A handful of major provisions in the IFR have been universally decried by the hemp industry.

These include:

  • DEA-licensed labs must test hemp and dispose of non-compliant hemp. This proviso is so onerous that the USDA has effectively waived it for this growing season.

  • 15-day sampling requirement to get crops tested is onerous for multiple reasons.

  • A “make farmers felons” provision that lays out severe, drug-like penalties for farmers whose hemp crop goes “hot”—i.e., tested at levels above 0.3% THC. The so-called “negligence threshold” is set at 0.5%, and anything above that could lead to penalties including a prohibition on future hemp farming.

  • A felony ban that mandates anyone with a drug-related felony in the last 10 years cannot participate in the hemp industry as a company executive. This was watered down from a lifetime ban for anyone involved in a company. But no other agricultural crop faces this type of proviso.

  • Disposal, not destruction of hot hemp. This opens the pathway for hot hemp to be used in other areas besides CBD, such as animal feed or bedding or other industrial applications. This is seen as vital for building a true, full-plant hemp industry.

“Unlike other agricultural commodities, we have controls in here that are not really appropriate for farming practices,” said Shawn Hauser, lawyer with the Vicente Sederberg law firm. “It will be critical going forward to comment on these other provisions, to give the USDA feedback.”

Farm bill changes

An additional deadline is that states operating under the original 2014 farm bill have decided to continue operating under the 2014 farm bill because it is less restrictive than the one the USDA weighed in on with the 2018 farm bill. Many leading states, like Colorado, continue to operate under the 2014 farm bill because it does not contain all of the USDA’s IFR restrictions. And when the IFR goes into full effect, states can no longer operate under the 2014 farm bill.

“The expiration of the 2014 farm bill is upon us,” said Hauser. “We need to comment on these rules to protect our industry.”

The USDA’s IFR is such a mismatch with Congressional intent to build a viable hemp industry that Oregon’s two Democratic senators wrote a letter to the USDA saying the IFR is inconsistent with federal intent.

Now is the time for hemp backers to have their voices heard by the USDA.

“This is our opportunity to make a difference,” said Moran, “to make a change to those final rules before they become final.”

While some of the problematic changes to the IFR can be fixed with sufficient pressure on the USDA, the 1% solution appears to be a bridge too far under today’s climate, even though “moving this to 1% from 0-.3% is the real solution,” said Eric Steenstra, president of Vote Hemp, an advocacy group that has set up a website where people can easily log their opinions. “I’m not saying it can’t happen but expecting it to happen this year is not super likely. I’d like to say a path for it is in the next farm bill. If farmers are getting hurt we might convince an ag committee to do it. It’s going to be a lot of work. They’re going to have to hear a loud message from the industry.”

The 0.3% rule came from a Canadian research botanist in 1976. The rationale stuck. It is the same standard used by the European Union, and Canada adopted it in 1998 when it legalized hemp farming. The U.S. codified the 0.3% dividing line in the 2018 farm bill.

The Farm Bueau supports 1% and the National Farmers Union actually supports 3%.

“We’re not going to have a viable hemp industry without addressing the problematic provisions in the IFR,” said Moran, “and the long game of 1%. It’s going to take all of us to push for the advancement of this industry to see it succeed.”

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