The official interim rules were published this morning in the Federal Register. The rule is effective from 10/31/19 to 11/1/21. States with existing pilot programs may operate under the 2014 Farm Bill provisions until 10/31/20, but must have their proposed programs submitted to USDA by 9/1/20.
If the 2018 Farm Bill is Enacted With No Changes...
- Testing must occur 15 days prior to completion of harvest
- Total THC (i.e. THC + (THCA * .0877)) must be 0.3% or less
- As little as 2" of terminal flower cut from each sampled plant
- Goes into effect immediately for non-pilot program states
- Pilot states must transition by 10/31/20
Unless your state's pilot rules are totally punitive and based on fear (looking at you Hawaii), be sure to pressure your state into SLOWLY submitting plans, waiting until the last moment possible--this will enable one more season under the 2014 production rules. Also note that any plant material grown under the 2014 Farm Bill provisions (including 2020, if under a state pilot) is allowed for the time being. Public comment is now open until 12/30/19. We caught flack for not mentioning the potential for public comment to change these rules earlier - the link is below. Your comments WILL be considered by the USDA, but NOT until the new rules are issued on 11/1/21 (see page 58522).
Please let that sink in--they are considering comments and data gathered after today, but very firmly saying "we don't want to address the plan issued here before 2021." Under their plan, public comments will be reviewed over the next two years. We hope respectful, and data-driven, public comments can dissuade that approach, but must also prepare for the alternative. Comments can be submitted via the form at the top of the page.
In our response, we will not be making any comments about delta-9 vs. total THC for several reasons. The first is a common misconception based on the 2014 Farm Bill language, which specifically limits delta-9 THC for compliance purposes, while making no mention of the compound's non-psychoactive, plant-native form, THCA. Some states were convinced to take that literally, which led to test results of state-compliant "hemp" like these:
There is a lot of THC in that flower, no matter how you heat it up. Most farmers truly just want to grow hemp legally and are not interested in producing THC-rich flowers under the guise of "hemp" like the sample above--but some state laws have allowed for this to occur. Congress's response in the 2018 Farm Bill, requiring all states to submit control plans including the following, elucidated key requirements in regards to THC calculations:
Clearly, decarboxylated (total) THC (i.e. delta-9 + (THCa *.877)) is the required reporting mechanism in the Farm Bill (this is from Congress directly, not the USDA interim final rule).
So instead of tilting at total THC windmills, our response to the USDA will instead focus on the sampling protocol itself. We all stand a fighting chance of continuing high content CBD production after 2021 if they follow common international standards and take the top 1/3 of the plant (hell, just take the top 8" if you have to) and include all of the stem and leaf material for compliance testing instead of separating out any pieces larger than 1.5mm. From a farmer's perspective, since there is no required post-harvest compliance testing nationally, that compliance test represents market entry. The sampling guidelines ARE NOT part of the interim rules, which suggests they can be altered with proper public pressure. This is a key area to focus on, but be focused!
Another important note is the original 0.3% THC limit (1976) was obtained by testing LEAVES, not flowers. Kind of an important distinction and very much worth noting.
Follow-up research (2004) demonstrated that flowers on their own can hit 0.8% THC. This is why representative sampling (both of a field for proper sample size, and of a whole plant to account for stem/leaf/flower ratio)--as opposed to concentrated sampling of flowers--is so necessary. Just say no to 2" flower-only samples!
There is a bigger issue for many of us though: as written, all compliance testing MUST be done by a DEA-registered analytical laboratory. All existing cannabis labs are prohibited from applying for this designation, as they are currently in violation of federal law by handling a schedule 1 substance (THC from marijuana). Like most states, Oregon only has one lab that meets this criteria: the state police crime lab. Does your state have a DEA-registered analytical lab? More about this particular roadblock in days to come as we update this piece live.
What If the Worst Versions of Rules and Sampling Go Unchanged?
Good CBD biomass--particularly trimmed flowers grown during 2019 and 2020 in 2014 Farm Bill compliant states just became a seller's market (now and future); extraction companies may not see ultra-high CBD levels again for at least 2 years after program implementation. The large glut in biomass predicted by some hasn't appeared, largely due to inopportune weather across the US, tremendous first-year farmer losses, and compliance-failed crops. There is a distinct advantage for some states in 2020 to stockpile high quality CBD biomass. If you are a farmer holding onto a high quality CBD crop and can afford to wait, prices are only going up. If you are an extraction lab, you'd be wise to buy up as much CBD biomass as you can for stockpiling. Without changes, it could be a bleak landscape until 2022 if you are seeking compliant CBD flowers.
Is this the end of the US hemp industry?
Not at all. This is when smart farmers separate themselves from the pack by using innovative practices. We have been preparing for this day since we started farming hemp in 2015. Through tens of thousands of labor hours, thousands of tests, and hundreds of acres of field trials over three years, we perfected the world's first commercially available type IV, pure CBG varieties. Today, we are able to offer farmers an incredibly valuable alternative to CBD farming with varieties that always pass THC compliance testing, even on fully finished, trimmed flowers. We believe that CBG will be more popular and useful than CBD; in addition to being the "stem cell of cannabinoids," it is the answer for forward-thinking farmers subjected to incredibly rigorous testing requirements. As always, we are proud to offer farmers a product that we can stand behind and a path forward in the cannabis revolution.
Please be aware that there are literally dozens of scammers trying to sell fake CBG seeds now for crazy prices. We have seen brazenly fake COAs (my favorite: a photoshopped result from Sunrise Analytical, an Oregon lab out of business since 2013), our own COAs with the company name blacked out, and COAs from our 2019 test farms, all being used to sell fraudulent seed. Buyer beware! If you can't afford to fail in 2020 (i.e. anyone under the USDA rule), you can't afford to risk CBG seed from anyone but Oregon CBD. Please see our COAs (dating back to 2017!) for Stem Cell CBG and White CBG if you have any questions regarding the veracity of our claims.