On February 27, 2020, the U.S. Department of Agriculture (“USDA”) announced that it will delay the enforcement requirement of the Drug Enforcement Agency (“DEA”) laboratory certification process and reverse distributer disposal requirements until October 31, 2021, or until the final rule is published, whichever occurs first.

The interim federal rules for hemp production, released in October of 2019, require DEA registration for all laboratory testing facilities testing hemp for THC concentration under the U.S. Domestic Hemp Production Program. According to the USDA website, there are only 47 facilities currently registered with the DEA that are certified to conduct these activities.[1] After release of the interim federal rule, industry participants voiced strong concern, if not downright outrage, for the requirement because there are not enough labs that qualify under the standards in existence and the labs that do exist and are DEA-certified lack the industry-standard equipment and do not have the capacity to process the number of samples.

In regard to disposal of non-compliant hemp following the testing, the interim federal rules require non-compliant hemp to be disposed of according to the DEA’s guidelines set out in 21 C.F.R. 1317.15. This regulation requires reverse distribution by certified reverse distributors or law enforcement only, ending in the plant’s destruction by an approved method.[2] Industry members voiced concerns about this method of disposal, noting that the lack of certified reverse distributers in the U.S. makes compliance extremely difficult, and it would be a ridiculous waste of law enforcement’s time to have to go and supervise destruction of hemp crops that tested hot. Seriously, who is going to pay for that? The taxpayers? The farmers? This requirement is ludicrous. We would hope that USDA could follow Colorado’s lead and utilize the procedures for crop disposal that have proven to work effectively since 2014.

After a few months of industry working to comply with the interim federal rules, USDA determined that there isn’t sufficient capacity in the U.S. for the testing in certified laboratories and disposal of non-compliant hemp plants. The USDA stated that, “one of the top considerations in making these changes was the desire to provide additional options that minimize, to the extent possible the resource impact to state and local law enforcement in handling hemp that is out of compliance.”[3]

Today, producers are able to test hemp at non-certified laboratories so long as the laboratories engaged in the testing comply with the same standards of performance as outlined within the interim federal rules, including the requirement to test for total THC employing post-decarboxylation or other similarly reliable methods. Producers are able to dispose of hemp utilizing one of the approved USDA disposal methods.[4] USDA will continue to conduct random audits of licensees to ensure hemp is being produced in accordance with the interim rules. While this delay of enforcement is a step in the right direction, USDA is still drafting the final rule, which will determine the agency’s expectations for testing and disposal going forward. We should also note that this reprieve is not permanent and there is a real possibility that these requirements will go back into effect within the next year or so. We strongly urge industry participants to voice their concerns over these rules, contact their representatives in Congress, and submit comments to USDA to attempt to strike these requirements from the rules permanently. We also urge market participants to voice opposition to the draconian criminal background checks that USDA is requiring. These checks are unnecessary and they prohibit people who have paid their debt to society from participating in a booming industry.

[1] “Hemp Analytical Testing Laboratories” USDA https://www.ams.usda.gov/rules-regulations/hemp/dea-laboratories

[2] 21 CFR 990.27

[3] See 1.

[4] “Hemp Disposal Activities” USDA https://www.ams.usda.gov/rules-regulations/hemp/disposal-activities

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