Hot Hemp Pits States Against Feds
New federal regulations would make it harder for hemp growers to prove their plants are not marijuana, in what could be a major setback to a promising industry legalized just two years ago, farmers and state officials say.
The U.S. Department of Agriculture in October unveiled stricter standards for hemp testing than many states had allowed under pilot programs that date to 2014. Now states are scrambling to adapt, and farmers are worrying they’ll face a higher risk of having to destroy crops that test “hot” as marijuana.
“Once again, Washington, D.C., is out of touch with rural America,” said Democratic Vermont state Sen. John Rodgers, who is also a hemp farmer.
Hemp and marijuana are separated by a fine legal line: Federal law defines cannabis plants with a concentration greater than 0.3% of the psychoactive compound tetrahydrocannabinol, or THC, as illegal marijuana. Plants with a lower concentration are defined as hemp, which can be legally sold anywhere.
The interim USDA rule that states must adopt by November requires more rigorous testing within a shorter time frame than many states have required so far. It also gives farmers less wiggle room to salvage crops that grow hot, or above the 0.3% THC mark.
Last year in the 16 states that shared their data with Stateline, 4,309 acres of hemp out of more than 179,000 acres planted were destroyed because plants tested over the 0.3% limit.
Five state agriculture departments did not respond to a Stateline request for data. Thirteen states did not have a hemp program last year. The remaining states either shared partial data — for instance, acres licensed but not acres destroyed — or could not provide data in acres.
Many state agriculture officials said failures could spike under the federal rule. In Maine, for instance, none of the more than 2,000 acres tested last year were considered hot. But under the USDA’s more stringent testing standards, more than a fourth of the crop would have failed, according to State Horticulturalist Gary Fish.
“It’s one thing to say, ‘After this date such and such happens,’ but what are the realities of enforcement?” asked Will Tarleton, founder of Canvast Supply Co., a Tennessee-based seed supplier and consulting group on hemp farming. “That’s ultimately everyone’s concern. ‘Am I going to jail or not? Am I going to lose my farm or not?’ There’s a lot riding on the farmer to do the right thing.”
Some advocates say there’s no way small farmers can comply. “The testing rules are designed to create as many violations and crop failures as possible,” said Mark Barnett, a Maine cannabis advocate and retailer of the popular hemp extract cannabidiol, known as CBD.
State leaders have time to persuade federal officials to make changes, however. While the USDA’s interim rule goes into effect Nov. 1, final regulations may not be issued until after the 2021 growing season.
“We will use the comments received and lessons learned during the growing season to help us develop the final regulations,” said U.S. Agricultural Marketing Service Administrator Bruce Summers in a teleconference with reporters earlier this month.
Farmers in about 22 states grew hemp under pilot programs prior to the 2018 farm bill, and all but three states now allow hemp production.
At least 30 states will have to revise their laws and regulations to comply with the interim rule, said Barb Glenn, CEO of the National Association of State Departments of Agriculture, an Arlington, Virginia-based membership group.
States such as Texas that never created a pilot hemp program are at a disadvantage, according to Coleman Hemphill, president of the hemp advocacy group Texas Hemp Industries Association.
Early adopters such as Kentucky and Vermont can extend their pilot programs through this growing season — rather than adopting the strict USDA rule right away — and will likely produce a more lucrative product as a result.
“I, in good conscience, couldn’t encourage Texas farmers to grow for CBD given that there’s a strong likelihood that if they do produce a profitable crop, it would not be compliant,” Hemphill said. “It would have to be destroyed.”
So far, the USDA has approved hemp production plans that met the new requirements for 10 tribes and eight states: Delaware, Louisiana, Nebraska, New Jersey, Ohio, Texas, Washington and Wyoming. Only New Hampshire of the 50 states has chosen not to operate a state program. Instead, the USDA will issue licenses for Granite State producers.
Twelve states have plans under review. At least another 15, including Colorado, Kentucky, Maine and Vermont, will continue operating for now under their 2014 pilot programs, which don’t meet the new requirements.
Hemp farmers struggle to grow low-THC plants for two key reasons, said Cornell University professor Larry Smart, who leads the university’s hemp research and extension team.
First, many hemp varieties that farmers sow are hybrids of plants grown to maximize THC and plants grown to maximize CBD, Smart said. “If you let those plants grow, no matter what the environmental conditions, they’re very likely going to grow between 1% and 6% THC.”
Second, the enzyme that produces CBD also produces a little bit of THC, he said. So growers who are trying to maximize CBD — aiming for a concentration of 10%, say — will end up with plants that hit above the legal THC limit, at about 0.6% THC.
Meanwhile, researchers don’t know how growing conditions affect THC levels and whether farmers can lower their chances of exceeding the 0.3% mark.
“The bottom line is, we don’t really have good, solid data yet to say, ‘Do this’ or ‘Don’t do this’ to try to avoid having a noncompliant level,” such as how much fertilizer nitrogen to apply or whether to irrigate, said Bob Pearce, an extension professor in the plant and soil sciences department at the University of Kentucky in Lexington.
Some state officials nationwide say that unpredictable genetics make hemp a risky crop.
“When the genetics piece of this gets figured out on a wide-scale basis, the industry has a chance to be profitable for a lot of people and really be a niche crop,” said Don Robison, seed administrator at the Office of Indiana State Chemist. “At this point, there’s a lot more risk and potential financial loss than there is financial gain for companies.”
In a year-end agronomic survey of 183 Indiana hemp growers, about three-quarters of them said they broke even or lost money in 2019.
About a third of the 3,100 acres the state tested exceeded the legal THC limit of 0.3%. But it burned only about 500 acres.
Hemp grown for fiber in Indiana that exceeded the legal THC limit was permitted to stay in the field longer to reduce the THC level, Robison said.
To help farmers, some state pilot programs allow growers to salvage crops with a THC concentration between 0.3% and 1%.
In Montana, for instance, growers can sell such plants after sending them to a processing facility that extracts the THC. “At that point, it’s basically going to be THC-free hemp CBD oil,” said Andy Gray, hemp program coordinator at the Montana Department of Agriculture.
Selling crops that test above 0.3% THC will no longer be possible under the interim federal rule, though farmers will get some leeway to account for imprecise test results.
If the rule had been in effect last year, about 8,000 acres in Montana — some 20% of acres tested — would have been destroyed, Gray said. Under the state pilot program, most of the 8,000 acres that tested hot were salvaged, and only 160 acres were destroyed.
Other pilot programs, such as Oregon’s and Maine’s, required hemp to be tested for “delta-9 THC,” a less strict standard than “total THC” testing now required by regulators — which counts both delta-9 THC and THC-A molecules.
The tougher standard means that many hemp varieties will no longer be able to pass THC tests.
“It made a significant difference and is going to affect what varieties are going to be legal in the U.S.,” said Matt Cyrus, a hemp grower and president of the Deschutes County, Ore., Farm Bureau. Farmers will have to experiment with varieties that will be riskier or less profitable, he said.
State officials also are worried about the USDA’s description of negligent violations. The agency considers producers who grow hemp without a license, who fail to disclose the location of hemp fields or who have a crop that exceeds 0.5% THC to be in violation of the rules. Producers with three violations over five years will be banned from their state’s hemp program for another five years.
Even if a crop is over the legal THC limit, the producer’s intent matters, said Stephanie Smith, chief policy enforcement officer at the Vermont Agency of Agriculture, Food and Markets. “In the state of Vermont, we feel you have to conduct an investigation and gather all the facts to determine whether someone is acting negligently.”
Farm groups and state policymakers are lobbying Congress to raise hemp’s legal THC limit to 1%. Rodgers, the Vermont state senator, said he’s putting together a letter to send members of Congress, either from the Vermont agricultural committee or a resolution from the full state House and Senate, to increase the THC level to 1%.
In Kentucky, Republican state Rep. Richard Heath introduced a similar resolution in the House.
The USDA notes that it can’t raise the 0.3% standard without congressional approval. “The farm bill set forth these requirements,” Summers of the USDA said in the teleconference earlier this month. “Any changes to these requirements require legislative action.”
The National Association of State Agriculture Departments has recommended that the USDA allow farmers to salvage crops that grow between the 0.3% and 1% THC range, as Montana has done. “It still allows farmers to have a viable crop,” Glenn said.
USDA officials may, however, on their own revise other testing requirements that state officials say would be impossible to implement and would hurt small farmers, who are less able to risk producing noncompliant crops.
During the teleconference, Summers said the USDA does have flexibility in some of the testing and sampling procedures and disposal of hot hemp.
Under the interim rule, every hemp field, greenhouse and indoor grow must be sampled by a law enforcement agency — or a government-approved agent — and tested by a Drug Enforcement Administration-certified lab within 15 days of harvest.
State agriculture departments argue that they, local governments and law enforcement partners can’t physically collect samples of every crop.
In Colorado, where about 53,000 acres were planted last year, only about a fourth of hemp farms were tested, said Brian Koontz, Colorado’s industrial hemp program manager. The selection process takes into account which farms are most likely to test hot, including farmers who grew high-THC plants the year before and farmers new to growing hemp.
Testing would increase fourfold under the USDA rule. “Our current infrastructure can’t handle that,” Koontz said. He estimates that 100 people or more would need to travel the state to collect samples every year.
Farmers and state officials also say the 15-day testing time frame is too short. “In many cases, it takes 10 days to two weeks to get the results back on a test. So the test is obsolete almost by the time you get the results back,” said Cyrus of the Deschutes County Farm Bureau.
And they point out that labs registered with the DEA are scarce. There are none in Vermont, for instance. The state accepts results from third-party labs that test hemp plants. But there aren’t even enough third-party labs in the state to test crops and report results to all farmers within 15 days, said Smith, who manages the state’s hemp program.
“So those farmers and producers will have to harvest their crop and then dry them and put them in storage before they know whether they have a compliant crop,” she said.
The National Association of State Departments of Agriculture and state agriculture officials have recommended that the USDA instead require states to focus on testing high-risk fields over a 30-day period, and to drop the DEA-certification requirement.
The USDA is aware farmers are worried about the 15-day turnaround. “It’s something we’ve heard loud and clear, and it’s something we are dealing with,” Summers said.
Some state officials also want the USDA to drop the requirement that law enforcement officials collect and destroy hot hemp plants. On a large farm, that can take days or weeks, Koontz said.
Barnett, the hemp retailer and cannabis advocate in Maine, wonders why the DEA is even involved.
“A lot of states are getting wise to the fact that the USDA is not going to be a good steward of this program,” Barnett said. “The fact that the DEA shows up anywhere at all in this is a flashing warning sign. This is not a drug.”
By the time the USDA finalizes its regulations, however, the testing debate may be irrelevant.
In two years, said Smart of Cornell, plant breeders will likely have developed verified, low-THC hemp varieties. Once farmers have seeds that will produce reliable hemp plants, there should be no need for testing.
“Why would you test a farmer with 1,000 acres of certified fiber cultivar?” he asked. “Do you really think they’re trying to grow marijuana?”
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