Hacking Through Hemp Regulations

By Lilly Platts

The USDA announced an industrial hemp program on Tuesday, October 29, which is a long-awaited clarification to the legalization of growing the crop, which passed in the 2018 Farm Bill.  Since the legalization, Montana has been operating under its own approved hemp guidelines, and the announcement of the program will allow the state to further improve and clarify the many variances and rules associated with growing hemp.

Senator Steve Daines (R-MT) was an outspoken advocate for growing hemp during the 2018 Farm Bill discussions.  He said hemp is a great opportunity to add jobs and advance Montana agriculture.

“As a member of the Senate Ag Committee during discussions for the 2018 Farm Bill, I worked hard to create more opportunities for Montana farmers and remove hemp from being considered a controlled substance.  I am glad to see Secretary Perdue and USDA move this process forward with the creation of the Hemp Production Program which will help provide regulatory certainty for Montana farmers interested in hemp production,” Senator Daines said.

Senator Jon Tester (D-MT) was also a tremendous advocate for USDA establishing a hemp program.

The fact that hemp can be considered a controlled substance continues to be a major part of the discussion.  In Montana, and now under the federal rules, a plant can only be .3 percent THC or less.  Montana Department of Ag Director Benjamin Thomas said the recent announcement is a step forward for hemp producers.  However, he added that there are some issues to consider, including what happens if a crop exceeds this legal level.

“I would like to see some more details on the corrective action,” Thomas said.  “The biggest thing I have seen a reaction to is that the testing protocol includes THC acid, or THCA.”

THCA, or tetrahydrocannabinolic acid, is a precursor to tetrahydrocannabinol (THC) itself.  Thomas explained that this is another variable to clarify when discussing the levels of “THC” to be allowed in a hemp product, as its inclusion or omission could change the interpretation of the rule.  Currently, the Montana rule states, “Hemp that has no more than 0.3 percent tetrahydrocannabinol is considered an agricultural crop in this state.”  Montana interprets this to include THCA.

The minute detail of rules like THC levels are a reason the USDA’s announcement may be extremely helpful for producers and processors.  However, the details also raise some concerns due to the strict specifications of the plan.  For example, the USDA’s plan outlines that a crop must be tested for THC levels within 15 days.  Under Montana’s plan, the rule is 21 days.  Thomas explained that in a state like Montana, some flexibility is necessary due to weather, travel, and other circumstances.  Along these same lines, Thomas pointed out that there does not appear to be fees associated with the USDA program, which could cover processes like sampling and inspection.

“It takes considerable on the ground resources to carry out the associated tasks,” he said.

As for the future of hemp, Thomas said it is difficult to tell what will happen in 2020, but he thinks production will be fairly close to 2019.  In Montana, supply outweighed the demand of processors.

“There are going to be some producers sitting on hemp,” Thomas said.

After the USDA announcement, Montana has three weeks to make adjustments to the plan that was previously submitted for approval in February.  Upon submission, the USDA has 60 days either approve or deny the plan, which will further allow Montana farmers to make plans for the coming year.


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