Category: hemp

USDA Testing Requirements for Hemp

Posted on by Patrick Morin
usda testing requirements for hemp

As mentioned in a previous article, the U.S. Department of Agriculture (USDA) recently published its interim final rule on the establishment of a domestic hemp production. The rule considers products compliant as long as 0.3% THC or below is within the product’s distribution or range.  These rules provide for potentially problematic situations for growers, though they are not unexpected.

Pre-Harvest Testing

Within 15 days prior to anticipated harvest samples must be collected by a Federal, state, local or Tribal law enforcement agency (or designated official). These samples must then be sent to a DEA registered laboratory for testing.

For anyone who has had experience dealing with regulatory agencies, you probably know that waiting for an inspector is part of the game. So what if the “designated official” conducting the sampling takes longer than 15 days? This could result in significant ramifications to the grower. It is possible that sampling beyond the planned harvest date could result in tests higher in THC because cannabis plants convert cannabinoids to THC as they approach maturity and harvest. The results from the pre-harvest test could mean the difference between whether an entire crop is destroyed or not, so the stakes are high.

Acceptable THC Levels

The interim final rule considers products compliant as long as 0.3% THC or below is within the product’s distribution or range. The rule does include some wiggle room in the THC calculation. The distribution or range is calculated by its percentage of THC +/- its “measurement of uncertainty.” This means that a product could test slightly over that limit but still qualify as hemp. The rule states “[t]he method used for sampling from the flower material of the cannabis plant must be sufficient at a confidence level of 95 percent that no more than one percent (1%) of the plants in the lot would exceed the acceptable hemp THC level.” “Acceptable hemp THC level” means:

Acceptable hemp THC level. When a laboratory tests a sample, it must report the delta-9 tetrahydrocannabinol content concentration level on a dry weight basis and the measurement of uncertainty. The acceptable hemp THC level for the purpose of compliance with the requirements of State, Tribal, or USDA hemp plans is when the application of the measurement of uncertainty to the reported delta-9 tetrahydrocannabinol content concentration level on a dry weight basis produces a distribution or range that includes 0.3% or less.

When cannabis is tested, there is a margin of error of the precision of the result. This margin of error, or “confidence level,” must be reported in addition to the actual result. For example, hemp that contains .34% THC but has a +/-.05 measure of uncertainty based on the testing method has a distribution or range of .29% to .39%. Because .3% THC is within this range, the USDA would consider this product compliant.

Confidence Level

Not all testing laboratories will utilize the same testing procedures and protocols, thus the results may vary from one lab to another. This could also lead to laboratory shopping, where customers search for laboratories that provide “flexible” results that are not as precise. This could even incentivize laboratories to stay at that 5% margin of error than trying to minimize the margin.

Decarboxylation

The interim final rule requires that testing methods must include a validated testing methodology that uses post-decarboxylation (or other similarly reliable methods) where the “total THC concentration level” reported accounts for the conversion of Delta-9-tetrahydrocannabinolic acid (THCA) into THC. “Other acceptable methods” include gas or liquid chromatography. The reasoning behind this is that while THC is the chemical component responsible for the intoxicating effect of cannabis, THCA is a non-psychoactive compound having very different properties. When THCA is heated, it goes through a process called decarboxylation, thereby converting to THC.

Mitigation

So what do you do if the THC levels are outside the acceptable range? Technically the product is then not considered hemp and thus would be classified as marijuana which is still a Schedule I drug under Federal law. As a result, the entire crop would need to be destroyed by a person licensed by the DEA to handle Schedule I drugs. But this is a problem also for testing laboratories because they would be in possession of Schedule I drugs. There is no current provision for remediation of crops with higher THC levels, thus the interim final rule threatens farmers’ livelihoods, especially if they are not protected by crop insurance.

If your business has questions regarding hemp compliance, please contact our attorneys at Morsel Law to set up a free initial consultation.

USDA Interim Hemp Rule – What You Need to Know

Posted on by Patrick Morin
USDA interim hemp rule

The U.S. Department of Agriculture (USDA) recently published its interim final rule on the establishment of a domestic hemp production. The rule establishes a program under which states and tribal nations must submit plans to regulate the production of hemp. Since most people don’t enjoy reading more than 150-pages of regulatory jargon, we’ve highlighted some of the important information you may be interested in below.

How do state programs get approved?

State or tribal nations seeking primary regulatory authority over its respective hemp program, may now begin submitting plans for approval. The USDA will approve or deny proposed plans within 60 calendar days. If a State or tribal plan is revoked, producers in that jurisdiction can take shelter under the revoked plan for the remainder of the calendar year and will have a 90-day window to apply for a hemp producer’s license under the USDA plan.

What if your state doesn’t submit a plan?

For producers located in a state or tribal nation that do not submit a plan, they will be subject to USDA’s plan. These producers may submit an application for a hemp producer’s license starting on November 30 and ending on October 31, 2020. In subsequent years, the annual application period will be from August 1 to October 31. To apply, an applicant must provide contact information, a legal description of the hemp producer’s lot, a criminal history report and other information as may be requested.

What are the testing requirements?

A representative sample of the hemp must be physically collected and delivered to a DEA-registered laboratory for testing. The rule also requires a Federal, state, local or Tribal law enforcement agency (or designated official) to collect samples from the flower material from the plant and test for THC concentration within 15 days prior to the anticipated harvest.

What are the “acceptable” THC levels?

Plans must also include procedures for sampling and testing hemp to ensure it does not exceed an acceptable THC level. The rule considers products compliant as long as 0.3% THC or below is within the product’s distribution or range. The rule does include some wiggle room in the THC calculation. The distribution or range is calculated by its percentage of THC +/- its “measurement of uncertainty.” For example, hemp that contains .34% THC but has a +/-.05 measure of uncertainty based on the testing method has a distribution or range of .29% to .39%. Because .3% THC is within this range, the USDA would consider this product compliant.

THC levels above acceptable range

Plans that do not meet the “acceptable hemp THC level” must be disposed of in accordance with DEA regulations. This means the product must be collected by an authorized person and destroyed by a DEA-registered reverse distributor. The producer must then send documentation to the USDA confirming the product’s disposal. Hemp producers will automatically receive a negligence violation if their product contains more than 0.5% THC. Moreover, if any producer receives 3 negligence violations in a five-year period, the producer will be banned from hemp production for 5 years.

Producer reporting requirements

All producers must report all addresses and locations where hemp will be grown, including indoor growing facilities, along with the acreage of that land. Annual reports must be submitted by December 15 each year, which provides certain producer information, land information and test result reports.

Transportation of hemp across state lines

On a Federal level there are no restrictions. Under the rule, states and tribal nations cannot place restrictions on the ability for compliant hemp product to cross their respective borders lines. However, certain state and local law enforcement agencies have taken a different view, stopping and seizing hemp shipments discovered in their jurisdictions. For example, the Idaho State Police seized a shipment of over 7,000 lbs of industrial hemp traveling from Oregon to Colorado and the West Virginia State Police seized a hemp shipment destined for Pennsylvania.

Until state laws catch up with federal law, interstate transport of hemp remains a fundamental risk with real business implications to hemp producers and their customers. Re-routing shipments to avoid certain states adds to costs and, if delayed, may lead to spoilage and financial loss. Some ways to mitigate risk mat be providing truckers transporting hemp: (1) a lab certificate attesting to 0.3% or below THC content levels to eliminate confusion between hemp and illegal cannabis; and (2) a copy of the hemp cultivation license issued under the state, tribe, USDA plan, or the 2014 Farm Bill to dispel doubts regarding the lawfulness of the production.

If your business has questions regarding hemp compliance, please contact our attorneys at Morsel Law to set up a free initial consultation.


FDA Says CDB Oil Not Dietary Supplement

Posted on by Patrick Morin
FDA says no to CBD oil as dietary supplement

The U.S. Food & Drug Administration (FDA) issued a warning letter to Alternative Laboratories, a dietary supplement manufacturer based in Naples, Florida, that markets CBD oil under the “Green Roads” brand name.

The FDA letter notes that CBD is the active ingredient in the approved drug product Epidiolex and is designed to treat certain rare, severe forms of epilepsy. Further, the FDA also notes that significant clinical research investigations concerning the use of CBD have been made public, including investigations related to Epidiolex and Sativex, a drug for the treatment of spasticity due to multiple sclerosis (MS) that has been approved for use in 25 countries outside the U.S. The manufacturer of Sativex, GW Pharmaceuticals, has disclosed its plans to seek FDA approval.

This letter is one in an ever growing list of FDA and FTC enforcement related to CBD products. While we await regulatory rules on CDB use, companies operating in the space should remain vigilant and adhere to a compliance policy that reflects–for now–the reality of current regulations and restrictions.

CBD businesses may contact our attorneys at Morsel Law for legal guidance by scheduling an initial consultation here.

FTC Issues Warning Letter to CBD Sellers

Posted on by Patrick Morin
CBD sellers issued warning letters

While the FDA has been at the forefront of enforcement against sellers of cannabidiol (CBD) products, the Federal Trade Commission (FTC) weighed in last week issuing warning letters to three separate businesses. According the letters, the FTC warned the businesses that sell oils, tinctures, capsules, gummies and creams containing CBD, a chemical compound derived from the cannabis plant, that it is illegal to advertise that a product can prevent, treat or cure human disease without competent and reliable scientific evidence to support such claims.

Although the FTC did not publicly disclose the businesses, its press release indicates that each of the businesses advertised CBD products that treat or cure serious diseases and health conditions – like cancer, Alzheimer’s disease, autism, anorexia, and more. Multiple claims were also made regarding their products effectiveness as a painkiller, in one instance claiming that CBD “works like magic” to relieve “even the most agonizing pain” better than opioids.

The FTC has given these businesses 15 days to address the concerns in the warning letters and demonstrate the health claims are supported by “competent and reliable scientific evidence.” A failure to address the FTC’s concerns may result in legal action against the businesses, including injunctions and orders to refund money to customers.

The takeaway here for CDB product sellers, manufacturers and advertisers is that they must be diligent and careful when making claims in connection with their products. Making unsubstantiated claims about the treatment, prevention or cure of a disease will expose a business and its products to regulatory scrutiny and, in some case, regulatory action. This includes statements made on labels, websites, press releases and social media accounts.

Before you print labels or post something on Instagram or Twitter about your product, you should make sure to have it reviewed for accuracy and compliance. It’s cheaper to make corrections before you go to print, then to later find out that you made a mistake and have to trash 6 months worth of labels.

If you need assistance reviewing your claims, please contact us at Morsel Law to schedule your free consultation.