Reed Smith Client Alerts

The USDA interim rules for domestic hemp production have been effective for approximately four months. Over this time, the USDA has been collecting public comment on the effectiveness of the rules and the challenges market participants face in complying with the rules. The public comments and feedback have highlighted a number of perceived deficiencies in the rules as drafted.

In October 2019, the United States Department of Agriculture (USDA) released its long-awaited interim final rule establishing a domestic hemp production plan in the United States. The USDA rule allows states and Indian tribes the option of either submitting to the USDA for approval a proposed hemp regulation plan or agreeing to follow the USDA's general requirements. The interim rule is effective from October 31, 2019, through November 1, 2021, at which point it will be replaced by a final rule. Although many have applauded the USDA's issuance of comprehensive hemp production rules, there are six key issues that stakeholders in the hemp industry have repeatedly identified as barriers (or potential future barriers) to the industry. As described in further detail below, stakeholders are concerned with various elements of the testing requirements included in the USDA rule, and the concerns raised make clear that further Agency thought is warranted to determine whether the testing requirements are feasible, practical, and equitable.

1. The 15-day sampling/testing/harvesting window is too short

Under the USDA rules, "within 15 days prior to the anticipated harvest of cannabis plants, a Federal, State, local, or Tribal law enforcement agency or other Federal, State or Tribal designated person shall collect samples from the flower material from such cannabis plants for delta-9 tetrahydrocannabinol concentration level testing."