Photo credit: DEA

Hemp farmers and industry advocates are alarmed that federal agriculture officials have brought drug enforcement back into the fold to ensure that cannabis produced for hemp in the U.S. does not exceed the acceptable limit of 0.3% THC.

The U.S. Department of Agriculture’s (USDA) interim federal rule for hemp production, released Oct. 31, requires that only laboratories registered with the U.S. Drug Enforcement Agency (DEA) will be qualified to conduct THC testing of hemp crops.

Industry members worry the limitation could delay THC testing and create bottlenecks, especially in remote areas far from a DEA-registered lab.

“It appears that many of the existing (DEA) labs don’t have the equipment and capacity to service the hemp industry,” cannabis attorney Shawn Hauser of Denver-based firm Vicente Sederberg said last week on a webcast with Hemp Industry Daily.

The rules propose that the USDA may establish an approval process for labs that want to offer THC testing services. Those labs would need certification by the International Organization for Standardization (ISO), which could be a suitable alternative, according to Hauser.

If the USDA chooses to approve testing labs, it could accredit laboratories that perform to a certain quality, in addition to requiring a particular ISO accreditation.

This is a departure from the DEA, which does not require labs to be accredited to handle narcotics. However, the USDA-approved labs would still have to be DEA-registered.

The alternate testing protocol “would give USDA the proper oversight of the laboratories doing the testing, providing quality assurance and control procedures that ensure a validated and qualified analysis, and defensible data,” the rule states.

The USDA is requesting comments on the requirements for laboratories, and will likely need to make changes regarding this issue, Hauser said.

The rules state that DEA-registered labs, and potentially USDA-approved labs, will ultimately be listed on the USDA’s Domestic Hemp Production website. Meanwhile, laboratories looking for information on becoming DEA-registered can look for updates on USDA’s hemp site or visit the DEA Diversion Control Division website.

DEA anxiety

For others, the idea that the DEA is involved at all is upsetting.

Denver attorney Frank Robison said he counted the number of times DEA was mentioned in the rule. By his calculation, the agency had 42 mentions, compared to two references about banking.

“It just shows that the priorities within the rule are skewed against the farmer in a way that would prohibit and restrict commerce as opposed to promoting commerce,” Robison told Hemp Industry Daily. “And in my view, the intent of Congress is to promote a commercial environment and commercial industry for hemp.

“We’re worried about 1,000 parts-per-million THC, when we should be worried about getting this industry off the ground and helping American farmers, providing them access to capital and making sure that their crops are insured.”

Hemp industry consultant Ryan Pettigrew said it makes sense that DEA would be involved, considering that crops testing hot would technically be marijuana, which remains a Schedule 1 drug on the controlled substances list.

“That one was obvious – there was really not argument to it,” Pettigrew told Hemp Industry Daily.

“Granted, in a perfect world, they would just deregulate everything,” he continued. “But that’s just not going to happen.”

The USDA predicted that some 20% of hemp samples collected next year would exceed the 0.3% THC limit and need to be destroyed. The USDA rule lays out no plan to appeal testing results.

Criminals, not farmers

Robison contends that for the micro levels of THC involved with hemp production, the USDA shouldn’t have to involve drug law enforcement.

“The USDA should have the capacity to manage 1,000 parts-per-million THC,” Robison said.

The DEA should be focusing on drug criminals, not farmers, he said.

“The folks that know how to work with crops are the people that should be managing the data and working with these farmers, not a law enforcement agency charged with pursuing crystal meth and fentanyl criminals,” Robison said. “They should not be even in the same ballpark.”

Further, he continued, Congress did not mean to scare farmers and put them on a watch list, but that’s the message the USDA rule sends.

Legitimate American farmers may have been sold “bogus seeds” or seeds that tested below 0.2% THC in Europe but went hot when grown in a warmer climate in the U.S., he said.

“Now all of the sudden, because they wanted to be part of this congressionally opened-up market, why now are they in a DEA database?” Robison said.

“Congress passed a law to promote the hemp industry in the United States of America,” he said.

“The regs that just came down, the No. 1 thing that they accomplished, if I was a farmer, was to scare me and to provide me with a doubt of whether I should be entering this market until there is additional clarity about whether or not I’m committing a criminal activity.”

Laura Drotleff can be reached at [email protected]

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