USDA Publishes Final Rule for Hemp Production Program

Miller & Martin PLLC Alerts | January 22, 2021

The United States Department of Agriculture (the “USDA”) published its final rule for the Domestic Hemp Production Program on January 19, 2021 to the Federal Register (the “Final Rule”). The Final Rule supersedes and replaces the interim final rule published on October 31, 2019 (the “Interim Rule”), and of which we wrote about here. The Final Rule, which will become effective on March 22, 2021, revises the Interim Rule based on feedback and information the USDA gathered during the comment period. For both licenses granted under State plans and licenses granted through the USDA, the most significant changes relate to the requirements for testing, sampling and disposal of non-compliant plants. Below highlights a few of these significant changes:

  • Testing. The Final Rule retains the total THC testing method. Total THC, under the Final Rule, must consider the conversion of THCA into THC, and report the amount which is equal to the sum of delta-9 tetrahydrocannabinol (“THC”) and THC-acid (“THCA”). Further, the Final Rule maintains the requirement that all samples must be tested using a DEA registered lab.
  • Sampling Period. The Final Rule extends the time for a sampling agent to collect samples from 15 days prior to an anticipated harvest to 30 days.
  • Sampling Specimen. The Final Rule requires that samples include flowers and leaves collected 5-8 inches from the main stem, rather than collecting a sampling of the whole plant.
  • Disposal. The Final Rule requires State plans to provide procedures for disposal, as applicable, or remediation of non-compliant plants. The Final Rule limits the maximum number of negligent violations for non-compliant samples to one per growing season for State plans or one per calendar year for USDA licenses.

The above items are merely a few of the many substantive changes in the Final Rule. In addition to the Final Rule, the 300-page publication provides summary and context of the USDA’s reasoning for many of these changes. States that have already submitted their plans will need to revise and resubmit their plans in accordance with the terms of the Final Rule. Finally, States which were operating under the terms of the 2014 Farm Bill will have until January 1, 2022 to comply with the Final Rule.

For more information about the latest guidance in this emerging hemp industry, contact Miller & Martin attorneys Stephanie Savage, Ward Nelson or any other member of our Cannabis & Hemp team. For product labeling and advertising claims inquiries, contact a member of our Life Sciences team.