The signing of the Agriculture Improvement Act of 2018 (the 2018 Farm Bill) into law resulted in the descheduling of hemp and opened the door to the wide scale production of the crop. It also tasked the United States Department of Agriculture (USDA) with establishing rules and regulations around hemp cultivation, including adherence to the legal limit of 0.3% THC by dry weight. USDA released its Interim Final Rule on Hemp on October 31, 2019. The team at Americans for Safe Access (along with almost 4,700 hundred other organizations and individuals) submitted comments on the new rule before the public comment period closed on January 29, 2020.
The interim final rule requires hemp cultivators to have samples of their crops tested for THC potency no more than 15 days before harvest. Importantly, the rule also requires that the laboratories conducting these analyses be registered with the Drug Enforcement Administration (DEA). This is problematic, because there are now only 47 such laboratories across 25 states. In our comments on the interim rule, ASA raised this concern to USDA and noted that this requirement could create a bottleneck as demand for testing services could far outstrip federally legal testing capacity.
We are happy to report that the USDA announced this week that it would be delaying enforcement of the stipulation that testing laboratories be DEA-registered, as ASA suggested in our comments, however we do recommend removing this requirement entirely instead of just delaying. The delay in enforcement is scheduled to conclude once the final rule is issued or on October 31, 2021, whichever is sooner. Until then, labs that are not yet registered with the DEA can conduct testing on hemp as long as they comply with the requirements set forth in the interim final rule – but “All labs will have to make arrangements to be compliant with registration requirements before this period of delayed enforcement expires. DEA will evaluate all applications using the criteria required by the Controlled Substances Act (21 U.S.C. § 823(f)).”
A major hurdle to DEA licensure for cannabis testing labs is that cannabis remains federally illegal. As one cannabis lab found out in 2010, the DEA inspects laboratory facilities prior to licensure and is required by federal law to seize all illegal substances found in the course of such inspections. The laboratory was operating under a license issued by the state of Colorado but was in violation of federal law, and thus was not granted a DEA license. This has served as a warning to cannabis testing labs, and none have obtained DEA registration in the 10 years since that event.
Cannabis testing laboratories are fully equipped to test hemp samples for cannabinoid content, and many are required by state regulations to have validated instrumental and analytical methods for sample extraction and analysis. Allowing state-licensed cannabis testing labs to test hemp samples would help to prevent a testing bottleneck, which in turn would help hemp cultivators stay compliant with the rules around testing and harvesting to which they must adhere. Furthermore, getting results faster thanks to increased testing capacity would facilitate cultivators’ efforts to ensure an organized and orderly harvest or to make appropriate arrangements for the destruction of the crop if necessary.
We are pleased that the USDA has recognized the impracticality of immediately enforcing the DEA registration requirement for testing laboratories and that hemp cultivators will be able to have their samples tested at laboratories that have yet to register with the DEA, but we remain concerned that traditional cannabis testing laboratories remain effectively barred from industry participation due to the requirement that unregistered labs make arrangements to obtain DEA registration before the period of delayed enforcement expires. Despite the USDA’s assertion that these steps “will serve as a temporary measure to allow a smooth transition into regular enforcement,” we hope that the department’s position will continue to evolve as the final rule is prepared and that a pathway will be created for cannabis testing laboratories to participate in the nascent hemp industry while continuing to serve the businesses that produce cannabis and cannabis products for medical patients and adult consumers.