Lawyers Weigh In on USDA Interim Final Hemp Rule

As USDA seeks comments by December 30 for its new Interim Hemp Rule that lays out regulations to establish a U.S. Domestic Hemp Production Program, a big concern is the rule’s timeline for farmers getting their plants tested to make sure they don’t exceed the maximum allowed level of THC.

The challenge is the rule requires that the plants be tested within 15 days before harvest begins. The USDA says if farmers delay harvest beyond 15 days, the plants will likely have a higher THC level than the sample. If the level exceeds 0.3%, the plants will have to be disposed of under Drug Enforcement Administration regulations because the hemp would be considered a controlled substance.

But the 15 days aren’t much time to submit the plants and get the results needed to know whether it’s OK to go ahead and harvest the crop, Michael Bowman, a co-founder of First Crop, a public benefit company working with hemp farmers, told the Denver Post. “I would call it unworkable at this point,” Bowman said of the provision.

Meghana Shah, a co-leader at the New York City office of Eversheds Sutherland law firm, told the Denver Post, “It doesn’t address the fact that all of the sampling and testing is essentially happening around the same time for all of the producers. There’s uncertainty as to when the results will come back and how that affects a producer’s decision to actually harvest. There are a lot of sort of logistical and practical hurdles posed by the 15-day window with not a lot of answers. That is one of the areas where USDA sought comment, so I think we can expect to see it addressed during the comment period,” Shah added.

According to USDA, the draft hemp rule outlines provisions for USDA to approve plans submitted by states and Indian Tribes for the domestic production of hemp. It also establishes a federal plan for producers in states or territories of Indian Tribes that do not have their own USDA-approved plan. The program includes provisions for maintaining information on the land where hemp is produced, testing the levels of delta-9 tetrahydrocannabinol, disposing of plants not meeting necessary requirements, licensing requirements, and ensuring compliance with the requirements of the new part. The rule will become effective when it is published in the Federal Register. Comments received by December 30, 2019, will be considered prior to issuance of a final rule.

To help producers and businesses make sense of USDA’s draft Hemp Rule, a number of law firms and legal experts specializing in industrial hemp have published opinions, analyses and client alerts about the impact and key takeaways of the draft rule. Here is a sampler of recent analysis, interviews and video segments with leading law firms tracking the industrial hemp marketplace about their views on USDA’s new interim hemp rules.

Read the Draft Rule here.

Comment on the Rule here. To date, USDA has received 714 comments on the draft rule to establish a domestic hemp program. To submit an official comment on USDA’s Interim Rule, visit here. Comments received by December 30, 2019 will be considered prior to issuance of a final rule.

USDA (Finally) Releases Groundbreaking Interim Hemp Regulations
By Garrett Graff, Hoban Law Group
https://hoban.law/2019/10/usda-interim-hemp-regulations/

Attorneys Scrutinize USDA Hemp Rule
By Law Week Colorado
https://lawweekcolorado.com/2019/11/attorneys-scrutinize-usda-hemp-rule/

Key Takeaways from USDA Final Interim Rules for Domestic Hemp Production
By Jennifer K. Mason and Ambur C. Smith, National Law Review
https://www.natlawreview.com/article/key-takeaways-usda-final-interim-rules-domestic-hemp-production

Client Alert: Legal Analysis of USDA Interim Final Hemp Rule
By Michelle Nicole Diamond, et. al., WilmerHale
https://www.jdsupra.com/legalnews/usda-releases-interim-hemp-regulations-71800/

Video Interview: What Hemp Businesses Need to Know about the New USDA Hemp Rules
Featuring Shawn Hauser, Partner, Vicente Sederberg
https://vicentesederberg.com/updates/shawn-hauser-hemp-industry-daily-interview/

Legal Alert: USDA’s Rule on Hemp Is Here, and It Needs Greater Clarity
By Gregory Kaufman, et. al., Eversheds Sutherland
https://us.eversheds-sutherland.com/NewsCommentary/Legal-Alerts/226749/Legal-Alert-The-USDAs-eagerly-anticipated-rule-on-the-production-of-hemp-is-here-and-it-needs-greater-clarity-and-would-benefit-from-more-industry-input

Client Alert: USDA Issues Hemp Rule
By Cameron Field, et. al., Michael Best, Attorneys at Law
https://www.michaelbest.com/Newsroom/222606/USDA-Issues-Hemp-Rule

One Step Toward Clarity: USDA Issues Interim Final Rule Establishing Hemp Production Program
By Ropes & Gray
https://www.ropesgray.com/en/newsroom/alerts/2019/11/One-Step-Toward-Clarity-USDA-Issues-Interim-Final-Rule-Establishing-Hemp-Production-Program

USDA Interim Hemp Regulations Provide Welcome Guidance But Need Refinement
By Mackenzie Schoonmaker and Christopher Strunk, National Law Review
https://www.natlawreview.com/article/usda-interim-hemp-regulations-provide-welcome-guidance-need-refinement

Will USDA’s Rule Get Hemp Over the Hump? (Maybe Not Without a Little Help from FDA)
By Ricardo Carvajal, FDA Law Blog
http://www.fdalawblog.net/2019/11/will-usdas-rule-get-hemp-over-the-hump-maybe-not-without-a-little-help-from-fda/

USDA Issues Rules for Hemp Production – Many Questions Remain for Hemp and CBD Sales
By Jay Dubow, et. al., Pepper Hamilton LLP
https://www.pepperlaw.com/publications/usda-issues-rules-for-hemp-production-many-questions-remain-for-hemp-and-cbd-sales-2019-11-08/

Does the USDA Rule Affect Hemp That Is Currently On the Market?
By Cannabusiness Law
https://cannabusiness.law/does-the-usda-rule-affect-hemp-that-is-currently-on-the-market/

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Steven Hoffman is Managing Director of Compass Natural, providing brand marketing, PR, social media, and strategic business development services to natural, organic, sustainable and hemp/CBD products businesses. Compass Natural serves in PR and programming for NoCo Hemp Expo and  Southern Hemp Expo, and Hoffman serves as Editor of the weekly Let’s Talk Hemp Newsletter, published by We are for Better Alternatives. Contact steve@compassnaturalmarketing.com.

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