KYHA Submits Comments to USDA re: Interim Final Rule (IFR) that Established U.S. Hemp Production Program
October 8, 2020
United States Department of Agriculture
Marketing Order and Agreement Division, Specialty Crops Program
1400 Independence Ave. SW, TOP 0237
Washington, DC 20250-0237
Re: Comments on Document No. AMS-SC-19-0042-4666
To Whom It May Concern,
The Kentucky Hemp Association is a non-profit trade association representing Kentucky’s hemp farmers, processors, retailers and manufacturers. We appreciate the USDA taking a thorough and measured approach to regulating the U.S. hemp industry. It is clear to all involved that U.S. farmers and manufacturers have taken an interest in making the hemp economy a reality. Despite tedious government regulations, banking fears, social media roadblocks, and other challenges, the industry has blossomed, and innovators have found ways to thrive under these excessive conditions.
In order to best address the concerns of USDA, we would like to offer the following suggestions regarding the list of topics suggested by the USDA.
- Measurement of Uncertainty and DEA Laboratories
We have faith in the experience and capabilities of our cannabis testing laboratories across the country. Although many of them have only been testing cannabis for a few years, almost all of them have a great deal of knowledge and experience in exploring new compounds and identifying not only cannabinoids, but terpenes, flavonoids, microbes, mycotoxins, yeasts, molds and fungus. These are all important and should not be overshadowed by a fascination with THC. Laboratories are held to the highest standards and are going to provide us with clear and concise data whether they are registered with the DEA or not. DEA registration and requirements add an undue burden and additional expenses. They serve to complicate an existing industry while raising costs, which are passed on the farmers and consumers.
The measurement of uncertainty is best defined by the labs themselves. Kentucky has some of the best and brightest lab executives in the country, many of whom are baffled by the excessive DEA requirements and arbitrary or non-specific requirements required by the IFR. One lab, for example, might return a measurement of uncertainty of +-2.5% for hemp flower and 3.75% for concentrate, while another lab may return a measurement of uncertainty of +-3.0% for flower and 4.0% for concentrates. Lab customers, like farmers and processors would be able to shop around for the highest MOU thus creating incentives for labs to drift further from accurate data in order to capture a greater market share of customers. A better method would be to replace the measurement of uncertainty language with a standard measurement of 0.1% as is currently recognized through most states today.
2. Liquid Chromatography Factor 0.877
This is another situation where labs are more capable of finding accurate data than formulas are. The factor of 0.877 for converting THCA to THC is based on the use of outdated GC/MS equipment, which burns the material in order to capture and identify compounds. Rather than requiring states to use a formula to determine compliance, it would be better to encourage states to utilize the investments made by private laboratories. Private labs have invested in the latest equipment, including HPLC, which returns more accurate readings and are required by market forces that want accurate data for their consumers. We also note that the original intent of congress was to establish “Delta-9 Tetrahydrocannabinol” as the qualitative measuring definition, the state of Tennessee and other states currently use this variance instead of the “Total THC” undefined term that our state currently uses, and is not defined in the law. Because of these discrepancies among states, it is hard to pose our laws within other states interpretation of them for point 4.) as defined below. We ask that you consider this in your assumption that 0.877 is a “standard” in calculating this definition as there was no accepted measurement six years ago when hemp became legally grown and is still being debated today.
3. Disposal and Removal of Non-Compliant Plants/ Negligence
Here is another example of an unhealthy fascination with THC. Plants that are deemed non-compliant by the state are currently required to be destroyed post-harvest. Therefore, we are rewarding time, labor, investments, and hard work with destruction of personal property. We feel that is an extreme response to a very low THC crop, considering that the lowest-quality marijuana in the U.S. is anywhere from 5-10% THC. If salvaging the crop is the goal, we find THC remediation to be the best option. Removing some of the THC from the crop will allow it to be sold and retain some value. If destruction is the only option, then perhaps the best solution would be to allow it to be sold into animal feed markets and consumed as a super feed for protein and fiber, or even pelletized for fuel. Simply burning the fruits of one’s labor is a great way to destroy enthusiasm and excitement.
The negligence factor is a major concern for our farmers because they run the risk of being labeled a criminal or losing their ability to grow hemp in the future after already losing their valuable property. Our farmers are the best in the world and are not growing hemp to be part of a criminal underworld. But drought, stress, inexperience, and other conditions can create fear and uncertainty where it should not be. Again, we are talking about plants that are lower in THC than even the worst-quality marijuana in the world, so when a farmer accidentally goes above 0.3 or 0.5 or even 0.7, they shouldn’t be labeled as criminals or have their rights restricted. To be safe and fair, we recommend a negligence level of 1%, which should be enough to prevent the vast majority of farmers from being labeled as criminal if the arbitrary threshold of 0.3% is surpassed.
4. Interstate Commerce
No restrictions on interstate commerce should be enforced. The DEA has been stripped of funding when it comes to hemp programs, but the Federal Government retains the authority to “regulate commerce among the several states.” Although modern definitions of “regulate” seem to mean “control and make decisions” we abide by the classical definition of “regulate” which means “to make regular.” Therefore, we believe the USDA should endeavor to keep trade regular and encourage states to import and export hemp across their borders. A disruption in this supply-chain would be devastating in our growing hemp economy, and before any changes are made, there should be clear timelines and steps on how laws and regulations may change procedures in the future, with a multi-year plan to adopt any such measure.
5. 15-Day Testing Window
As many of our counterparts in Kentucky have mentioned during the previous comment period, 15 days will be a challenge for state regulatory departments to achieve. We think that a better solution would be to offer 15 days before harvest, and then allow for the possibility of an additional 15 days before hemp material may be sold. That way farmers can harvest after 15 days, and if the results have not returned yet, they may store it for another 15 days while they await results. We recommend a landscape of a 30-day testing window, much like the state of Tennessee currently uses.
6. Hemp Seedlings, Microgreens, and Clones
This topic contains a wide variety of potential conversations, so we will focus on a few factors we view as the top priority. The most important factor regarding micro greens is the fact that in some misguided states, micro greens are viewed as a cause for concern, prohibited, and kept out of healthy diets. If the USDA has the authority to allow micro greens to be sold nationwide, it will be a huge benefit to good health and prevention of disease across the United States. We also feel strongly that such measures should be recognized for making this commodity a recognized feed alternative to the livestock, poultry, and farming sectors in our nation, like any other crop grown for human, or animal, consumption.
Seedlings and clones, while a different topic, are still important to small farms and producers. Many small farms find that cloning plants is an effective way to ensure a compliant harvest and also increase income at the farm gate. However, big ag interests are already looking for ways to patent molecules and specific genetics. While we appreciate and encourage selective breeding and Intellectual Property, we also wish to function on a level playing field where small breeders can operate on the same playing field as the largest companies. Intellectual property rights for small breeders should have the same protections as the inevitable GMO breeders will have.
7. Sampling Methodology
We feel that, in reference to points 1.), 2.), and 3.), sampling must occur liberally on a farmer’s hemp plot. There is such a variation in testing and sampling as it is, that one cannot go by just one sample. No sample from even one genetic will be exact, and the plant should be tested as a “whole sample” meaning not just a floral composition, as leaves and stalk are usually harvested with the whole plant. We ask that you follow common sense in how many states, like Kentucky, currently sample and test in its’ own program. A retest should also be granted within a reasonable timeframe, as Kentucky does already, to give the farmer a chance to make his or her case that their crop is also compliant. It is important to note that milling whole plant material is a longstanding method that achieves compliance, and our state is one that recognizes this to work with a farmer to make their material marketable.
Again, the Kentucky Hemp Association appreciates the effort USDA is making to fairly regulate hemp producers in the United States. We stand ready to assist with any additional questions or concerns that the USDA may have.
The Kentucky Hemp Association (KYHA)