The USDA Final Rule for Hemp Production: What it Means for Farmers and Processors

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2021 USDA Compliant Hemp Testing: What Growers Need to Know (Updated March 2021)

The rollout of USDA compliant hemp testing regulations over the past year has come with lots of bumps, twists and turns. 

On Jan. 19, 2021, the U.S. Department of Agriculture published its long-awaited Final Rule on the 2018 Farm Bill that legalized hemp production across America. The document codifies and finalizes provisions such as THC potency limits for hemp, and where and how to get hemp tested for USDA compliance. It will be enforced starting March 22, 2021. 

Heading the list of updates provided in the Final Rule are some significant changes: extending the harvest window from 15 days to 30 days after testing takes place; removing criminal negligence penalties for crops that test at greater than 0.5% THC potency but less than 1% THC; offering states and tribes more options for disposal methods for hemp crops that test above the 0.3% THC potency threshold; and allowing greater flexibility in testing procedures for states and tribes. 

The previous guidelines, aka the Interim Final Rule, caused some confusion and pushback from the hemp industry regarding hemp potency—the rule had stipulated that a tested crop must fall below 0.3% total THC by dry weight or be destroyed, which many farmers and industry professionals found too unforgiving of slight, unforeseen variations potentially caused by natural external factors like weather.

In addition, the Interim Final Rule mandated that testing for potency compliance must be carried out by a laboratory registered with the U.S. Drug Enforcement Administration—a serious hardship, farmers and stakeholders argued, because of how few registered laboratories existed at the time. (Trichome Analytical is a DEA-registered hemp testing laboratory.) 

Finally, the requirement that hemp be tested within 15 days of planned harvest was seen as far too short to allow cultivators to comply with new testing requirements. 

But now, the Final Rule has been published. So what do hemp growers need to know about USDA compliant hemp testing? We’ll explore in detail below.

How and Where to Get Hemp Tested for THC Potency

Under the Final Rule, compliant pre-harvest hemp potency testing must be carried out within 30 days of planned harvest. 

A sealed hemp sample, collected by a federal, state, tribal or local official—not the cultivator—must be sent along with a chain of custody form (to establish a legal paper trail for the hemp) to a DEA-registered laboratory for compliant testing. With the Final Rule, there’s a greater degree of flexibility given to state and tribal programs regarding sampling—plans must still be approved by the USDA, but states and tribes can now take into consideration the history of producer compliance, state seed certification requirements and other factors in establishing their sampling guidelines. 

Also of note in the Final Rule: Recognizing the current small number of DEA-registered labs across America, the USDA and DEA have extended the requirement that testing must be carried out by DEA-registered labs until Jan. 1, 2022.  

The key takeaways here are that the requirements are on the horizon—and it’s in a cultivator’s best interest to establish a working relationship with a DEA-registered laboratory now to both ensure accuracy and to bolster their track record of producer compliance.

Trichome Analytical, which serves hemp producers in the Northeast and nationwide from its headquarters in Mount Laurel, New Jersey, is already a DEA-registered hemp testing laboratory. This means we have successfully demonstrated adequate lab security protocols and physical security in addition to lab principals passing background checks. DEA registration allows laboratories to legally receive, handle and test hemp grown by USDA-approved licensees.

It’s important to understand that many states have their own USDA-approved hemp production plans and may have different requirements for sampling, handling and testing of hemp. For example, under the Pennsylvania hemp program, samples must be taken by an approved independent sampling agent. If you’re unsure, it’s best to reach out to your state or tribal office for specific testing requirements. For more information, visit this directory compiled by the USDA’s Agricultural Marketing Service.

USDA Testing Rules for THC Level

In order to be compliant with USDA regulations, pre-harvest potency for hemp must fall below 0.3% total THC on a dry weight basis within the uncertainty measurement. This testing must be carried out using post-decarboxylation or “similarly reliable analytical methods.” 

Typically, labs use high-performance liquid chromatography (HPLC) to identify and quantify cannabinoid presence. At Trichome Analytical, we test for 15 different cannabinoids and we calculate the total THC content using the molecular weight conversion factor for THCA of 0.877. 

Once cultivators receive an official potency analysis that verifies their crop falls below the 0.3% total hemp THC potency limit, they can begin harvesting. 

If the hemp crop tests hot (that is, the sample exceeds the 0.3% threshold), it must be destroyed. With the Final Rule, however, it no longer needs to be collected for disposal by registered agents according to the Controlled Substance Act. Rather, it can now be disposed of through mulching, composting, burning, burying at a depth of 12 inches, bush mowing / chopping or similar methods to make the product unusable. And, as long as the potency falls below 1% THC, cultivators will not be held criminally liable. The USDA does allow for one official retest, to be paid by the licensee requesting the retest; the results are issued to the licensee and the USDA or its agent.

When to Start Testing Hemp Crops

Since costs and economic fallout associated with destruction of non-compliant crops are placed on farmers, not regulatory bodies, it’s essential for cultivators to ensure their crop falls below the set 0.3% total THC limit. For many, that means informally testing hemp crops frequently in the leadup to the official pre-harvest testing window of 30 days before harvest. 

Home testing kits are available, but they can present issues with accuracy and reliability. 

It’s recommended that testing is carried out by a trusted lab with experience in hemp and cannabis testing. Cultivators are allowed to enlist the services of a lab to analyze hemp crops at any time—regulations that mandate samples be taken only by approved agents apply only to official hemp pre-harvest compliance testing. By engaging in testing before this official window, cultivators can be sure of their crop’s potency and can adequately plan for compliant pre-harvest testing. 

Depending on the cultivar, cannabis plants tend to accumulate cannabinoids rapidly near the end of the growing season before levels begin to decline—therefore, timing of harvest is of critical importance. Weather events such as drought can cause an even bigger spike in cannabinoid production. Keep a close eye on crops as they mature; testing frequently is key. 

On the Horizon

Even though the regulation that testing labs must be registered with the DEA is temporarily on hold, to avoid a headache down the line, cultivators are best served by utilizing a DEA-registered lab for the 2021 season. In addition, the 0.3% THC potency limit is still a matter of hot debate. However, that limit can only be increased by Congress, and it’s unlikely further legislative hemp reforms would happen anytime soon. 
At Trichome Analytical, we are committed to scientifically rigorous analysis, consumer safety and the growth of the legal hemp industry. To that end, we offer compliant pre-harvest hemp potency analysis services, certificates of analysis (COAs) for cannabinoid profiles and a host of safety panels for hemp cultivators, manufacturers and retailers. Please reach out to us to learn more about testing services or to order testing.