Oregon senators urge ‘enforcement discretion’ for hemp

SALEM – As hemp farmers prepare for harvest, Oregon’s two U.S. senators are calling for enforcement discretion over testing requirements in the USDA’s interim final hemp rule.

Sens. Ron Wyden and Jeff Merkley, both Democrats, championed hemp legalization in the 2018 Farm Bill, working across the political aisle with Senate Majority Leader Mitch McConnell, R-Ky., to remove hemp from the list of Schedule I drugs.

Hemp is closely related to marijuana, though it has a much lower percentage of tetrahydrocannabinol, or THC, the compound that gets users high. Marijuana remains illegal under federal law.

By rule, hemp cannot have more than 0.3% THC. The USDA issued its interim production rules for hemp in October 2019 – outlining when, where and how the crop should be tested.

In a July 29 letter to USDA Secretary Sonny Perdue, Wyden and Merkley said they are concerned about policies in the interim rule that could burden farmers and stifle the industry. They asked for changes and leniency to help growers get through this year’s harvest with minimal difficulty.

At the top of the list, the senators urged USDA to drop its condition that hemp must be tested at laboratories registered with the Drug Enforcement Administration. Oregon has no such labs, despite having the fourth-highest number of registered growers in the country at 1,535.

According to the USDA, the closest DEA-registered labs are in Seattle, Sacramento, Calif., and the San Francisco Bay Area.

The USDA has said it will use discretion while delaying enforcement of the DEA lab requirement, though Wyden and Merkley said a directory, posted on the USDA’s website, “signals that there is no intent to remove this unnecessary requirement in the final rules.”

Wyden and Merkley also raised concerns about how hemp is tested for THC.

One main issue deals with whether hemp will be tested solely for delta-9 THC or total THC. Delta-9 THC is the intoxicating form of the compound, though there is another component in standing hemp plants known as tetrahydrocannabinolic acid, or THCA, that converts to Delta-9 THC when heated.

Oregon has previously only tested hemp for delta-9 THC, though the USDA interim rule requires testing for total THC — meaning hemp that would normally pass might exceed the 0.3% threshold and have to be destroyed.

The senators asked Perdue to allow for testing delta-9 THC in the USDA’s final rule.

Other requests include:

• Allowing hemp to be tested within 28 days of anticipated harvest. The USDA interim rule calls for testing within 15 days, which the senators argue is “an impossible obstacle” for growers.

• While the USDA rule specifies that only flowering buds from the top third of hemp plants should be tested for THC, the senators said samples should include stalks, leaves and stems that may have lower concentrations of cannabinoids but are used in hemp biomass.

• Under the interim rule, hemp that measures more than 0.5% THC can be considered a negligent violation. Wyden and Merkley said that threshold is arbitrary, and should be more than 1%.

“We fear that, without these changes, our past work and efforts to support hemp farmers and the industry across the country may be for naught and we will not be able to achieve the growth and success we all know is possible with the right support and policies in place,” the senators wrote.

Sunny Summers, cannabis policy coordinator at the Oregon Department of Agriculture, said there are 1,535 registered hemp growers statewide in 2020, which is slightly fewer than the 1,766 growers registered at this time last year.

The number of registered acres is down substantially, from 58,000 at this time in 2019 to just more than 20,000 this year. Summers said that may be because growers are cutting back after experiencing trouble last year, from untimely rains to a bottleneck at drying and processing facilities.

“I think a lot of people realized they bit off more than they could chew last year,” Summers said.

On the other hand, Summers said some growers may not be growing any new hemp at all in 2020, but still need to keep their registration in order to sell last year’s crop.

Summers said ODA will submit a new hemp plan for the USDA to review in mid-August showing how the state will comply with the agency’s proposed rule. The state is still largely regulating hemp under its existing program guidelines established by the 2014 Farm Bill.

ODA did, however, already shift to testing hemp for total THC to align with the USDA interim rule. Summers said they will pull that back if allowed by the feds.