Unanswered questions for industrial hemp production in the United States have the industry watching the United States Department of Agriculture closely as they await regulations, according to the National Agricultural Law Center.
The National Agricultural Law Center, a unit of the University of Arkansas System Division of Agriculture, hosted a mid-September to address some of the concerns that have growers scratching their heads, such as the legality of CBD, THC testing and crop insurance.
Although cannabidiol, better known as CBD, seems to be the money maker for hemp producers, there is still a large gray area surrounding the product.
“According to the Federal Drug Administration, or FDA, it is illegal to add CBD oil to food or to a dietary supplement,” said Rusty Rumley, senior staff attorney for the NALC. “And although the 2018 farm bill legalized industrial hemp, Section 297D states that nothing in the farm bill overrides the FDA.”
FDA has approved CBD for treatment of severe childhood epilepsy, however, states are taking their own approach, Rumley said. Some states are allowing CBD to be used in food or dietary supplements while others are following FDA guidance and not allowing it.
“The FDA says that it is bound by the law, but they aren’t doing much to enforce it, except in extreme cases,” Rumley said. “Initial statements from the FDA said this could take years to resolve unless Congress gets involved.”
On Sept. 17, Senate majority leader Mitch McConnell pushed to expedite action from the FDA.
For hemp to be considered legal in the U.S., it cannot have more than 0.3 percent tetrahydrocannabinol, or THC, the psychoactive component of hemp.
“The biggest issue we’re facing is the THC testing,” Rumley said. “One of the most critical issues is how do you measure it and what do you measure?”
There isn’t a standard testing procedure, and current THC testing regulations vary from state to state.
“In California hemp must be tested no more than 30 days before harvest,” Rumley said. “Kentucky has a 15-day harvest window.”
Different states also have different requirements for samples that are tested and exceed 0.3 percent THC.
“Some states mandate samples be destroyed if it reaches above 0.3 percent, while others allow for re-testing,” Rumley said. “Growers and processors need to check with their states to see what the protocol is in their jurisdiction.”
Although the goal is to have a simple, inexpensive and reliable test for THC levels, Rumley said there are still a lot of questions surrounding the protocol. Are the current tests accurate enough for a court of law? In cases of interstate transport, whose test results would be used?
Starting in 2020, hemp will be insurable under the Whole Farm Revenue Protection Plan. Producers can choose to cover between 50 and 85 percent of farm revenue.
There are some distinctions for industrial hemp, however:
- If the crop is damaged, insurance will not cover replanting expenses
- Must be operating under an approved plan
- Must have a production contract with a processor
- THC levels above 0.3 percent are an uninsurable loss
During the webinar, Rumley also discussed the status of other issues for industrial hemp production such as the labeled pesticides, contracts with processors, and expense and quality of sourcing seed.
For more information on industrial hemp production in the U.S., visit https://nationalaglawcenter.org/research-by-topic/industrialhemp/.