These comments are in reference to the United States Department of Agriculture’s Establishment of a Domestic Hemp Production Program interim final rule, Docket no. AMS-SC-19-0042.
I am Richard Rose of The Richard Rose Report. Starting in 1994 I was the first to introduce sophisticated branded dry, perishable and frozen foods based on hempseed, after pivoting from a 14-year award-winning career in soy-based foods. Shelled hempseed, the product I pioneered in the US and Canada, is now 90% of Canadian hemp. In 2000 I co-wrote The HempNut Health and Cookbook and in 2004 The HempNut Cookbook. With 40,000 followers on social media, I’ve given advice to thousands of farmers, processors, entrepreneurs, and regulators regarding hemp since 2014. It is that experience which informs these comments.
America’s Hemp Legacy
As you know, hemp’s legacy in America exceeds even the founding of the nation, starting in 1632 in Virginia where it was once mandatory. The Founding Fathers grew it as a cash and fiber crop, the War of 1812 was about supplies of it, and the esteemed work of Dr Lyster Dewey illuminated it. USDA’s Hemp for Victory campaign during the war was the pinnacle of hemp’s crucial importance in service to the nation.
Responding to market demands, much of today’s hemp would be unrecognizable to Dr Dewey. While hemp became a proxy in the war against marijuana for decades, marijuana is now legal in some form in 47 of the 50 states. Hemp medicines have been approved by FDA, and hempseed foods are GRAS. Descheduled by the Agriculture Improvement Act of 2018, hemp is no longer a drug diversion threat requiring excess regulation as a Schedule 1 controlled substance.
Hemp has the potential to improve family farms, the soil, industry, and sustainability, and has already been the reason many sons and daughters have returned to the farm. Hemp flower products can improve wellness and nutrition, and will someday be as ubiquitous as soybean in the domestic food production system. Hemp products will desalinate water, store energy, and make sheets of carbon fiber and plastic. Starting in 2010 the hemp cannabinoid cannabidiol re-invigorated the US hemp industry, and many new varieties were certified. Smokable hemp has the potential to be just as important of a product segment. Hemp has captured the agriculture and processing community’s interest, reinvigorating a new generation.
This opportunity is a momentous time in our country’s history. It couldn’t have come at a better time, the hemp industry grew fast but was mostly imported; it can now be supplied domestically. The CBD market grew 600% last year and for the first time hemp products are in retail chains.
Request Congress raise maximum THC to 1%, as hemp is no longer a diversion source; especially with today’s higher CBD content, and especially in the 47 marijuana-legal states. Maximum THC for hemp is 1% in Switzerland, Australia, and most tropical countries.
Request Congress to allow “felon rehabilitation” programs, and support it with targeted grants. Congress’ unfortunate ban of only drug felons from hemp farming falls hardest on minorities, the poor, caregivers and their patients.
In the spirit of Dr Dewey (1865-1944), hire several Agronomists with established experience in hemp. Many farms and state programs will be looking to USDA for answers to common questions and emerging problems.
End USDA and state program jurisdiction upon harvest of the plant.
Encourage farms to use hemp for decortication, animal bedding, fuel, building materials, phytoremediation of soil, and erosion control by not testing for delta-9 THC since there is no intent to harvest or produce flower products.
Encourage regional co-ops for value-added processing to give farmers more control and higher returns. Empower contractors but give farmers leverage and the right to sell their crop to whomever they want.
Give farmers tools to find, sell to, contract with, and collect from buyers. Allow farm stands, retail sales of hemp farm products. Encourage field trials in year one for new farmers.
Designate Cannabis and hemp co-ops as “agricultural institutions” and allow them to submit plans directly to USDA, bypassing the state.
Encourage farms within twenty miles of other hemp or marijuana farms to develop responsible pollen and fiber/biomass management plans.
Encourage hemp product exports and foreign marketing. Establish insurance, crop quality, and water programs. Offer development and R&D grants.
Allow use of analytical laboratories by farmers and the general public, in order to test hemp product quality and compliance.
Minor technical violations of the program should not be punitive and should be allowed to be corrected without penalty.
Since some hemp farms are targets for thieves, the locations should be redacted and handled as a farm’s trade secret, not disclosed except under court order or to a law enforcement official. Otherwise, open-source all data. Mandate farms preserve records for no more than three years.
Do not mandate use of only certified or approved varieties, but do provide a clear and transparent path to certifying new varieties. Do not require testing for delta-9 THC if AOSCA, OECD, or other certified seed is used, since it is already certified by a government agency to be low in THC, making expensive testing redundant.
Treat all hemp cultures equally; personal, outdoor, indoor, hoop house, broadacre, ornamental, and greenhouse cultivation of hemp. Allow small personal and/or ornamental hemp cultivation by citizens, without registration or delta-9 THC testing.
Regulate like potatoes, not drugs.
Delta-9 THC Test Protocol
The Agriculture Improvement Act of 2018 made clear Congressional intent was to regulate only one cannabinoid, namely delta-9 tetrahydrocannabinol (THC).
Remove the “negligence” conditions, as this is not a potential drug crop. A new farmer exceeding 0.3% delta-9 THC is only a mere technical violation, not a drug diversion threat or proof of intent to grow marijuana. If a farm truly does intend to grow marijuana as hemp, the state already has laws to prosecute it. Since non-compliance is legally as if growing a Schedule 1 controlled substance, the risk is too high for innocent farmers caught in a steep learning curve. As we saw in 2019, many are victims of unscrupulous seed sellers, brokers, and consultants.
Do not require testing for delta-9 THC if AOSCA, OECD, or other certified seed is used, since it is certified by a government agency to be low in THC, making expensive testing redundant.
Require that the test sample collection protocol objective be not to obtain maximum THC, but to represent all the aerial parts of the field including males. Do not mandate collection of just the top ⅓ or 2 inches of high-performing specimens, and require use of an objective collection path and protocol through the field. The minimum number of samples per field or variety should exceed 10, later aggregated to one sample for testing.
Require test sample collection within 60 days of harvesting. The current standard of testing within 15 days of harvest is a prescription for disaster at the state level, for farms, sample collectors and testing laboratories. In a large state with many licensees, it could hold up harvests for months and could cripple the hemp program.
Allow any agriculture professional to collect samples, not just law enforcement officers. This is not a drug crop.
Allow the delta-9 THC test to be performed by any state-licensed laboratory. Requiring a hemp analytical lab have a DEA permit solely in the event the sample is over 0.3% delta-9 THC contravenes a permanent injunction by the Ninth Circuit Court of Appeals (2004)against DEA using the Controlled Substances Act to regulate THC if found in hemp. It will be a profound burden on labs and farms for a mere technical violation which treats all parties involved as criminals, and illegally gets DEA back into hemp regulation via “the back door.”
Allow farms to harvest in good faith if it has a compliant delta-9 THC test from a licensed laboratory for the crop taken within 4 days of the state’s sample collection or later.
Encourage programs use High Performance Liquid Chromatography, and test only delta-9 THC.
Clarify that for the purposes of program compliance, 0.3% is exceeded only by 0.4%, not 0.31%.
Allow programs to have no regulations or delta-9 THC test on hemp grown only for not human consumption use of the stalk and/or root, including decortication, animal bedding, fuel, building materials, phytoremediation of soil, and erosion control.
Require no program registration or delta-9 THC test if a farm is growing less than 5 acres of hemp, for use solely on that farm or for field trials and agronomic testing.
Exempt registered seed breeders from mandatory delta-9 THC testing of plants used for developing new cultivars or varieties.
Require programs select only 10% of licensed farms for delta-9 THC testing, at random.
Require programs provide licensees certified laboratory analyses of delta-9 THC test as evidence of state of compliance or noncompliance.
Don’t hamstring tomorrow’s farmers for today’s Controlled Substances Act. With 50 years of “no medical value” unconstitutionality and 91% public support for the 47 marijuana-legal states which have in fact found medical value, federal descheduling of Cannabis is inevitable.
If the delta-9 THC test certifies levels exceeding 0.4%, allow the farm to submit an acceptable remediation plan within 10 days, or use the crop only on the farm for decortication, animal bedding, fuel, building materials, phytoremediation of soil, and/or erosion control.
Allow remediation of crops exceeding 0.3% delta-9 THC either on the farm or under bond at a remediation facility, or to be used in a product from which cannabinoids can not be readily obtained, such as decorticated bast and/or hurd fiber, animal bedding, fuel, building materials, phytoremediation of soil, and erosion control.
In marijuana-legal states allow sale of the non-compliant hemp to licensees in that state’s marijuana program.
Require programs allow stalk and root be exempt from the program once harvested, and not needing delta-9 THC remediation in any event.
Allow programs to have no regulations or delta-9 THC test on hemp grown only for uses of the stalk and/or root not for human consumption, including decortication, animal bedding, fuel, building materials, phytoremediation of soil, and erosion control.
“I believe that the acceptance of tobacco in Europe was undoubtedly enhanced by European familiarity with smoking hemp. Tobacco was in many ways a counterpart to hemp, all the familiar features were there. Perhaps the spread of tobacco was so rapid and overwhelming in the Old World because a receptive ground had been laid by the traditional folk uses of hemp.” —Sula Benet Early Diffusion and Folk Uses of Hemp (1967)
While once fiber, then seed, and now CBD are the value-drivers for hemp, the biggest potential contribution to society of hemp today is as a non-tobacco tobacco replacement. Because of that, it has encountered a number of regulatory obstacles in tobacco-producing states. Since most adults can benefit from smokable hemp in some way, it has massive positive public health implications, especially for tobacco-cessation. It is critical that USDA work to encourage and protect smokable hemp from death by over-regulation.
To fund the program I suggest re-deploying a significant portion of the Drug Enforcement Administration’s (DEA) $1.6 billion domestic enforcement budget, as for years DEA‘s marijuana eradication program was composed 98% of feral hemp (ditchweed), our genetic hemp legacy.
Respectfully Submitted on January 5, 2020.
Founder, The Richard Rose Report