On October 29, the USDA announced the establishment of the U.S. Domestic Hemp Production Program. As our readers know, the 2018 Farm Bill removed hemp from the Controlled Substances Act and assigned regulation of hemp production to the states with oversight by USDA. The Domestic Hemp Production Program creates a consistent regulatory framework around hemp production throughout the U.S.

The USDA also announced it will be publishing an interim final rule that outlines provisions for the Program. As detailed in the interim final rule, a State or Indian Tribe that wants to have primary regulatory authority over the production of hemp in that State or territory of that Indian Tribe may submit, for the approval of the Secretary, a plan concerning the monitoring and regulation of such hemp production. State and Tribal plans developed to regulate the production of hemp must include certain requirements when submitted for USDA approval. Those requirements include:

Land use for production

1. Sampling and testing for delta-9-tetrahydrocannabinol (THC) to ensure the cannabis grown and harvested does not exceed the acceptable hemp THC level
2. Disposal of non-compliant plants
3. Compliance with enforcement procedures including annual inspection of hemp producers
4. Information sharing for reporting specific information to USDA
5. Certification of resources
6. Plan approval, technical assistance, and USDA oversight

Additionally, the interim final rule establishes a federal plan to regulate hemp production by producers in areas where hemp production is legal but not covered by an approved State or Tribal plan. All hemp produced outside of States and Tribes with approved plans must meet the requirements of the USDA plan, which has requirements similar to those under State and Tribal plans, but also requires a USDA hemp producer license. USDA also developed guidelines for sampling and testing procedures that are being issued concurrently with the rule. These documents provide additional information for sampling agents and hemp testing laboratories.

Overall, the U.S. Domestic Hemp Production Program will provide clarity to the production of hemp and foster further confidence in hemp products; however, the program will not directly impact the regulatory status of consumer products that contain cannabidiol (CBD). A draft of the interim final rule is available on the USDA’s website. Industry stakeholders may submit comments on the interim final rule once published in the Federal Register, which is likely later this week. Keller and Heckman attorneys would be glad to assist interested parties in preparing comments for submission to USDA or advising on how to comply with the U.S. Domestic Hemp Production Program.