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Reducing Regulatory Burdens On Hemp Farmers
Current THC testing and sampling requirements – while well intended to distinguish hemp crops from illicit marijuana grows — have severely burdened farmers and is particularly onerous to those who grow hemp fiber and hemp grain crops. Pre-harvest sampling and testing protocols are cumbersome and prone to error, frequently leading to inaccurate compliance results. This creates serious financial risks and legal liability, hampering the adoption of hemp among farmers and impeding the growth of the hemp industry.
While many farmers have called for a complete exemption from testing requirements for hemp grain and hemp fiber, some regulators have reacted with concern that, without testing, there would be fewer safeguards against the illicit cultivation of marijuana under the guise of hemp. A solution exists that will provide significant regulatory relief to farmers while still ensuring sufficient regulatory oversight: Fit for Purpose (FFP) licensing.
A FFP structure gives farmers and downstream processors the opportunity to choose a clear, less burdensome regulatory pathway based on the final purpose of the crop, while providing regulators a more manageable and effective mechanism for ensuring compliance with the law. FFP creates nine different license types and provides clear processes for review, testing, sampling, harvest, and drying. With the USDA employing its existing authority to utilize performance-based sampling, hemp farmers with an established track record of compliance would benefit from fewer regulatory burdens, while state hemp regulators would be spared from conducting repetitive and largely unnecessary inspections and tests. Meanwhile, post-harvest sampling and testing will provide a more accurate measurement of THC level for products entering the market while reducing costly issues of non-compliance and remediation.
Proposed Legislative Language
Sections 1639p(a)(2)(A)(v) and § 1639p(a)(2)(E) of title 7, United States Code, are amended by adding at the end of each the following:
FIT-FOR-PURPOSE LICENSING FOR HEMP CULTIVATION
(a) IN GENERAL – Within the 180 days following enactment of this section, the Secretary of the U.S. Department of Agriculture is directed to promulgate rules to create a Fit-For-Purpose hemp cultivation license structure with appropriate compliance testing, using performance-based sampling protocol as an additon tool for the following categories of hemp license:
1. Industrial Hemp, to include:
(a) Hemp stalks, fiber and hurd – typically harvested in advance of flower development;
(b) Hemp grain – harvested post flowering for the collection of seeds and grain; and
(c) Non-flowering hemp – where no flower or biomass will enter the market, to include
i. Microgreens;
ii. Nursery-propagation;
iii. Research and development and
iv. Breeding
2. Raw Hemp Flower – producing hemp flower, where other parts of the plant are considered waste products that can be used for extraction or fiber; and
3. Multipurpose Hemp – grown for multiple end uses, and producing sufficient feedstock/biomass and flowering material to be separated during harvest and used for extraction of cannabinoids, essential oil, and chemicals.
(b) SCOPE OF PROGRAM – Within the promulgation of these regulations, farmers shall have access to multiple licenses, and accommodations shall be made to allow farmers to change license types in response to market conditions or other factors.
(c) CERTIFICATE FOR COMPLIANCE HEMP – Within the promulgation of these regulations, the Secretary of the U.S. Department of Agriculture shall develop a Certificate for Compliant Hemp harvested under the terms of the Fit for Purpose license based on the crop’s end use, in order to provide a clear chain of custody and proof of lawful cultivation to facilitate interstate sales and transfer of hemp agricultural products.
(d) DEFINITIONS – within this section, “Performance-based sampling” means a sampling method that meets the requirements of 7 C.F.R. § 990.3(a)(2) or the requirements in 7 C.F.R. § 990.3(a)(2)(iii)(A) and (B) for an alternative performance-based method that is approved by the Department.
