2014 Farm Bill Expiration: What Does it Mean for State Hemp Programs?
By Michelle Bodian, Catie Wightman
Dec 17, 2021
After several extensions, the 2014 Farm Bill is finally set to expire on December 31, 2021. As of January 1, 2022, all states must either have a USDA-approved hemp product plan or cede regulatory oversight over hemp cultivation to the USDA (enabling farmers to receive a license directly from the USDA).
Current Status of State Hemp Programs
With the repeal of the 2014 Farm bill imminent, most states have already developed 2018 Farm Bill Programs that the USDA has approved. Several states have submitted plans to the USDA that are currently under review but have yet to be approved. These states include Arizona, California, Illinois, Maine (see further comment below about Maine), Montana, New Mexico, North Dakota, Oregon, Utah, and Vermont.
Hawaii, Mississippi, New Hampshire, North Carolina, and Wisconsin chose to defer authority to the USDA and allow the USDA to issue producer’s licenses directly to farmers.
Although the state has not submitted a plan to the USDA, Alaska indicated its intention to submit it before the end of the year.
According to the USDA, Maine may be the only state in the U.S. to not have an approved hemp plan in place by the end of the year.
Hemp Production Under the 2014 Farm Bill
The 2014 Farm Bill allowed states to operate pilot programs regulating hemp production. These pilot programs had limited oversight from the federal government and permitted hemp production for limited research purposes. The permitted research purposes under the 2014 Farm bill included “market research,” and many states used this category to establish robust programs regulating allowing the production, processing, and sale of hemp for a wide range of uses and products, including the sale of CBD products.
Hemp Regulation Under the 2018 Farm Bill
With the 2014 Farm Bill set to expire this month and no further extensions expected, states that wish to retain regulatory authority over hemp production must develop regulatory programs that meet the requirements of the 2018 Farm Bill and the USDA’s final rule for hemp production. States that opt not to regulate hemp under a 2018 Farm Bill program can allow hemp producers to operate under a federal USDA license. Under the 2018 Farm Bill, states are also given authority to be more restrictive than the federal government regarding hemp production. States may prohibit hemp production within their borders but may not limit the transportation of hemp through the state.
The USDA must first approve state programs under the 2018 Farm Bill before becoming operational. Under the 2018 Farm Bill, state hemp programs must meet several requirements, most notably:
Reporting requirements for the location and acreage of hemp planted
Sampling and testing requirements to ensure that hemp remains within the “acceptable hemp THC levels”
States may establish “performance-based sampling” programs
Hemp must be tested for Total THC, as opposed to the less restrictive delta-9 THC standard
“Total THC” is defined as “the post-decarboxylation value of THC, either after testing with gas chromatography or LC after using a conversion factor. LC does not use decarboxylation as part of the process and this addition is to account for the conversion of THCA into THC if decarboxylation was part of the process. The addition of 87.7 percent of THCA is applicable if the testing laboratory uses LC with detection to measure the THC. Total THC is the measured THC plus 87.7 percent of THCA.”
The maximum window to collect samples before harvest must be no more than 30 days
Testing must be completed by DEA registered laboratories (enforcement of this requirement is delayed until December 31, 2022)
Disposal or remediation requirements for cannabis plants that test above 0.3% THC
A “corrective action plan” for violations of hemp program rules
Vicente Sederberg LLP continuously monitors state and federal laws and regulations for changes affecting hemp production and processing. Please reach out to a member of our hemp team for additional information.