Phytonyx CEO, Justin Tombe, speaks at a Total THC Rally, November 2019, educating the community about the new USDA Interim Rule and how to take action.

On Dec. 20, 2018, President Donald Trump signed the Agricultural Improvement Act of 2018, also known as the “2018 Farm Bill.” The bill represented a significant transformation in hemp policy. Since the bill was signed, however, hemp advocates, industry stakeholders, regulators, farmers and law enforcement have been waiting for the United States Department of Agriculture (USDA) to establish regulations for the domestic hemp production program, and all parties have been operating in a state of relative uncertainty until regulations are finalized.

On October 29, 2019, the USDA released a draft of the Interim Final Rule to be adopted into the final register. A significant number of interested parties, including farmers, breeders and even state regulators have expressed apprehension about the new proposed hemp regulations during the public open comment period. The USDA interim rule include restrictive provisions that, unless amended, could harm America’s nascent hemp industry. Fortunately, the deadline to submit comments has been extended, and Phytonyx encourages hemp farmers, extractors and retailers to formally present their concerns and recommended amendments before the January 29, 2020, deadline. After this date, the USDA will begin to finalize the regulations.

Some of the concerns we see with the new USDA regulations include:

1. USDA or USDEA Rule

The pre-harvest hemp sampling procedures to test for total THC content (<0.3%) currently defined by the USDA interim rule restrict pre-harvest sampling to only be conducted by DEA registered labs, of which there is currently only a handful. Why is the USDA involving the DEA for hemp? The process for DEA lab certification currently takes 6-9 months, which will surely result in pre-harvest sampling bottlenecks for the thousands of American hemp farmers (17,000 in 2019, and expected to double for 2020).

Phytonyx objects to the DEA registration requirement for labs and request USDA to allow similar types state licensing/accreditation to the ORELAP accredited/OLCC licensed labs that currently test recreational marijuana in Oregon, or to require labs to have ISO accreditation.

2. Non-representative Sampling Methods

Rather than utilizing full-plant pre-harvest sampling, the USDA interim rule restricts the plant sample to be composed of clippings from only the top two inches of the hemp flower, which contain higher concentrations of THC than the rest of the plant harvested for hemp biomass. This is not an accurate representation of the total THC level, but rather the highest THC level.

Phytonyx requests that USDA change the pre-harvest plant sampling to include full-plant representative samples.

3. The 15-Day Harvest Rule

The current USDA rule limits farmers to 15 days from the time the pre-harvest sample was taken to await the results and then harvest their entire crop. It cannot be overstated that part of the 15-day window is waiting for the results of the test, which currently takes up to a week, and considering the potential bottleneck of relying on DEA registered labs could easily take two weeks. (If the pre-harvest sample is not under the legal total THC limit of 0.3%, the farmer has to destroy the crop.)

If the pre-harvest sample tests under the legal limit, the farmer then has only a short time to harvest the plant before the 15-day window is up. Harvesting an entire hemp field, even with mechanized harvesters, often takes over a month. As the new USDA rule currently stands, if the farmer doesn’t make the 15-day deadline, the crop has to be tested again and the farmer will again have to wait for the second round of pre-harvest results before they can continue harvesting. This 15-Day Rule was clearly not well thought out and it puts farmers at risk of losing their crop due to logistical nonsense.

The previous test-to-harvest standard (in Oregon) was 28 days. Phytonyx opposes the new USDA 15-day limit and recommends the deadline be changed to 30 days.

4. 0.3% vs 1.0% Total THC Testing

Let’s be honest. Nobody is getting high off of hemp. The USDA’s regulation of THC in hemp should be intended to prevent hemp farmers from growing high-THC cannabis in their hemp fields. The USDA’s adherence to a strict 0.3% total THC limit for hemp is not based on sound science or any non-psychedelic metric. Rather it is based on an arcane Canadian hemp standard implemented for the hemp grain market in the 1990s. Because the natural range of CBD:THC in hemp is 20:1 to maximum 40:1, limiting the total THC to 0.3% limits the maximum CBD percentage in hemp to (0.3×40) = 12%, which is less profitable to the farmer than growing current varieties that are 20% -25% CBD with only 0.5% total THC.

An adverse result of this unreasonable 0.3% total THC limit will be the emergence of genetically modified THC-compliant hemp that boasts higher CBD concentrations. Phytonyx highly recommends that the USDA adopt a more reasonable 1% total THC limit for hemp flower and biomass.

5. Violations and Penalties

Farmers face penalties if their hemp tests over the permitted limit. If the pre-harvest samples test over 0.3% total THC, the crop will have to be destroyed. The proposed regulations also set forth a “three-strike” policy. This means that if a farmer’s hemp tests over 0.5% THC, they will need to destroy the crop and will be given a strike. If they get three strikes in a 5-year period, they are barred from growing or processing hemp for 5 years. This range is too tight. While the crop may still have to be destroyed if more than 0.3%, the farmer shouldn’t be further penalized for going inadvertently hot.

Additionally, per the USDA rule a violation “with a culpable mental state greater than negligence” will be immediately reported to both the U.S. Attorney General and the chief law enforcement officer of the state or tribe.

If the total THC limit remains at 0.3% total THC, then Phytonyx recommends a more realistic 1% total THC threshold before the farmer faces any strikes or consequences.

Takeaways

Once the USDA integrates the comments received and issues the final rule, they will guide the hemp industry for at least the next three years.

Phytonyx strongly advises our farmers to personally respond to the USDA interim rule and advocate for:

A 1% total THC limit for hemp.

If the 0.3% total THC remains, then establish a 1% total THC threshold before the farmer faces any strikes or consequences.

Pre-harvest compliance testing protocols that are representative of the entire plant.

A time period of 30 days from pre-harvest sampling to harvest the crop.

Well-equipped professional labs to be certified by the state or ISO-accredited, rather than registered with the DEA.

Ensuring that fingerprinting and background checks are only for owners and top management that are on the licenses. The rest of the workforce shouldn’t be required to have formal checks.

A system that allows the CBD concentrate to be legally stored, handled and transferred to other processing facilities. Prior to crossing state lines or inclusion into a retail product, the concentrate will need to be diluted back to the legal limit.

Alternatives to the current crop destruction methods for non-compliant hemp lots. These could include remediation methods, conversion to biochar, or even rapid composting as means to improve soil tilth.

Now is the time (before January 29, 2020) to provide feedback to the USDA. We need to challenge the overly restrictive regulations in the Interim Final Rule. Farmers cannot challenge if they don’t register comments, you can read the Interim Final Rule and comment here.

Phytonyx CEO, Justin Tombe, speaks with attendees at a Total THC Rally, November 2019

About Us

Phytonyx offers premium feminized CBD and CBG hemp seeds, starts and clones as well as non-feminized tri-crop seeds. We work with farms of all sizes in the U.S. and abroad. We are committed to helping the industry grow and develop through focusing on education and political involvement to make sure that our voices and the voices of our colleagues and clients are heard. We want to help shape these USDA regulations for the benefit of our entire industry, and we urge you to do the same. For more info on our advocacy or the wide variety of products we have to offer, call us at (541) 640-7598 or reach out to us online.

Justin Tombe (Phytonyx CEO), Courtney Moran (President, OIHFA), Ron Wyden (Oregon Senator), Sunny Summers (Cannabis Policy Coordinator, Oregon Department of Agriculture) August 2019 at the Western US Hemp Growers Conference & Expo Justin Tombe had the opportunity to meet with Senator Ron Wyden and discuss the questions many current and future hemp farmers have when it comes to the new USDA Regulations.