The U.S. Department of Agriculture (USDA) published an Interim Final Rule (IFR) regarding the testing of hemp at Drug Enforcement Administration (DEA) registered labs. The department wrote that it is “Delaying enforcement of the requirement to use laboratories registered with the Drug Enforcement Administration (DEA) for testing. Under this guidance, the testing can be conducted by labs that are not yet DEA registered until the ﬁnal rule is published, or Oct. 31, 2021, whichever comes ﬁrst. This change will allow additional time to increase DEA registered analytical lab capacity.”
Hemp was legalized under the 2018 Farm Bill, but because the product had been regulated under the Controlled Substances Act there is insufficient capacity for testing and disposing of non-compliant plants. Hemp with a tetrahydrocannabinol (THC) level of 0.3% or less on a dry weight basis is no longer a controlled substance in the United States. “We also know that weather and other factors may affect the THC level in hemp and that labs may receive material that is over the 0.3% THC level and is, by deﬁnition, a controlled substance,” said the announcement.
“We are delaying enforcement of these requirements based on comment received in response to the IFR and in discussions with states and tribes as they pursue USDA-approval of their plans. Through these conversations, we have learned that these provisions will serve as a significant hindrance to the growth of a domestic hemp market at this nascent stage. For instance, we now better understand how the limited number of DEA-registered labs will hinder testing and better understand the associated costs with disposing of product that contains over 0.3% THC could make entering the hemp market too risky.”
Cannabis with a THC level of over 0.3% on a dry weight basis is a controlled substance, and the USDA said that hemp must be disposed of on-site according to the disposal methods approved by USDA.
Potential market entrants and related industries are relying on USDA to provide guidance in their preparations for the 2020 growing season, and the Administrator found that there was good cause to issue the IFR without prior opportunity for notice and comment and to make it immediately effective.
“All laboratories engaged in the testing of hemp through this interim period will be subject to the same compliance requirements of the IFR. Specifically, labs must adhere to the standards of performance as outlined within the IFR, including the requirement to test for total THC employing post-decarboxylation or other similarly reliable methods. All labs will have to make arrangements to be compliant with registration requirements before this period of delayed enforcement expires. DEA will evaluate all applications using the criteria required by the Controlled Substances Act.” Additionally, USDA will conduct random audits of licensees to verify hemp is being produced in accordance with the provisions of the rule.