Senate Bill 153 significantly changed hemp cultivation laws in California. Approved by Governor Gavin Newsom in October this year, it intends harmonizing California’s laws with both the 2014 and 2018 federal Farm Bills. These bills legalize hemp production nationally, and the state wants to submit hemp plans to the U.S. Department of Food and Agriculture, or USDA, in compliance with interim hemp laws.
New USDA Hemp Regulations
Despite all the best efforts of California legislature to comply, those interim regulations were just that: Temporary. According to the Federal Register, which came out just a few weeks later, the rules differ enormously from the plans California put forward. This is important because the USDA interim laws require the state’s hemp cultivation plans to be as restrictive as its own USDA rules, at the very least.
This means that most of the current laws and regulations California puts on hemp production are not as restrictive as the USDA rules. In practice, this means that the state will need to change its plans dramatically before finally submitting them to the USDA, likely only early next year, and there are important areas where they differ and must agree. These include:
Times for Testing
Senate Bill 153 required testing samples for “no more than 30 days before harvest.” The new USDA regulations require sampling to occur within 15 days before harvest. There is good reason for this. This gap of 15 days is especially important because levels of THC rise the closer harvest time comes. Plants simply produce more THC in the last 15 days than they do in 30 days.
Test for Total THC
Companies only needed to test for delta-9 tetrahydrocannabinol under Senate Bill 153. Under the new regulations of the USDA, laboratories must test for total THC, which includes psychoactive delta-9 THC, and non-psychoactive delta-9 tetrahydrocannabinolic acid, or THCA. In hemp samples, this often increases the THC concentration, pushing it over the 0.3 percent limit separating hemp from marijuana.
In effect, this turns many hemp breeds into marijuana, completely changing the definition of hemp. It limits which cultivars are suitable for hemp commerce, and ultimately which harvests are legal or not. Unsurprisingly, this caused major backlash for the USDA. It means that hemp legal under Senate Bill 153 might actually not be legal after all. Total THC levels might well be too high even to qualify as hemp.
Registering with the DEA
All laboratories that test hemp must register with the Drug Enforcement Administration, or DEA, under the new USDA regulations. Currently, this is not a requirement under existing law in California. For laboratories that want to test for both marijuana and hemp markets, this can be especially problematic, but compliance here is non-negotiable. They will have to register with the DEA, however, they must.
Understanding Federal Hemp Laws
Over the next year or two, while states busily draft plans and submit them to the USDA, the new interim laws make it very clear that states may still produce hemp under the 2014 Farm Bill. This bill gives very narrow permission to higher learning institutions and state agriculture departments to produce hemp. California permits more than the 2014 Farm Bill does, broadening its permissions in many cases.
Thus far, the agency supervising the cultivation of hemp in California, being the Department of Food and Agriculture, has yet to comment on the new USDA regulations and its interplay between the 2014 Farm Bill and Senate Bill 153, which is the Farm Bill of 2018. The future is very interesting. Many waits in anticipation to learn of the agency’s position is, and how it will now regulate registered hemp producers.
The USDA interim rules do not affect any marijuana delivery service in California. They relate really only to growing hemp, not much else. Immediate CBD delivery remains legal and widespread, but while the interim rules reference processing and extraction, it has no explicit requirement for licenses, or even authorizing it in various states. It simply allows states the right to choose their stance on the issue.
Importantly, the USDA interim rules give states the authority to permit or prohibit the cultivation of hemp. Because it does not mention extraction or processing much, this should not be an indication of states having no authority to decide for themselves. They do and can choose to allow hemp processing or not, as well as the sale of hemp-derived cannabidiol, or CBD, and even immediate CBD delivery statewide.
The Food and Drug Administration, or FDA, remains steadfast in its yearlong position that many hemp-derived CBD products are actually illegal. California Legislature, specifically Assembly Bill 228, legalizes CBD made from hemp as a food additive, but earlier this year, it stalled out in a legislative committee. For now, you can still order immediate CBD delivery, using a legal marijuana delivery service.