USDA Interim Final Rule: Thoughts on Sampling
The USDA Interim Final Rule for the production of hemp was published on 10/31/2019. There is much to say about this Rule and this blog will try to highlight issues receiving little attention in the media.
Sampling
The Sampling Guidelines have two main aspects that raise red flags in our view.
Only the Flower?
First, the sampling of a particular plant is to be made just underneath the flower or bud, at the top one-third of the plant. This method will maximize the percentage of THC found in the sample. This sampling method ignores the fact that many growers will be utilizing much more than just the top flowers. In fact, smart farmers will be looking for markets for as much of the plant as possible in order to maximize their profit.
One Plant Per Acre?
Second, the Guidelines employ a formula that only requires the sampling of one plant per acre. If you have a lot size of more than 20 acres, even less than one plant per acre may be sampled. This is concerning because it appears to often be the case that there can be substantial variation of THC between individual plants of the same strain within the same acre. Microclimate variations of sun, wind, water, and temperature can cause a range of cannabinoid levels in plants that are relatively near each other. If the sampling agent happens to take a cutting from the one hot plant in the whole acre, and only that one plant, then the farmer faces the destruction of the entire crop, even if the other plants may be compliant.
Only 15 Days to Harvest?
Sampling must occur within 15 days of the anticipated harvest. Harvest must not happen prior to sampling. If you can’t complete harvest within the 15 days, you have to get the lot sampled again. We see, in this Rule, many opportunities for delays to cause problems. What if the sampling agent is busy and can’t get to your field for a couple of weeks and the delay causes your crop to go hot? What if you don’t finish harvest in 15 days, and your second sampling comes back hot? Clearly, growers must plan well in advance to know when to request sampling and be ready to harvest immediately afterwards.
What Can You Do?
Farmers may benefit from substantial self-testing to familiarize themselves with the variations of their crop prior to the official sampling, and be prepared to educate the agent and advocate for a more comprehensive sampling practice by the agent instead of just one cutting per acre.
The Guidelines do not prohibit the sampling of additional plants, they only specify the minimum requirements for the sampling agents. For New England farmers, whose hemp acreage often numbers in the singe-digits, persuading the sampling agent to do more than the minimum may be necessary.
The USDA explains in the Rule that they considered but rejected a sampling method that “would have required every acre of hemp to be sampled and tested, which would have resulted in high costs to producers and overwhelming volume to laboratories.” It seems clear that the USDA is thinking about producers in other parts of the country growing hemp in 100+ acre lots, and not the New England craft hemp growers.
Also important is that farmers contact their state agencies and advocate for a state plan that outlines a fair sampling procedure. The USDA Rule states an intention to provide flexibility to States and Tribes and that alternative sampling and testing protocols will be considered.
Does This Really Matter?
If these issues seem trivial, consider that the USDA admits (in a footnote) that it “estimates that 20 percent of lots per year will produce cannabis that tests high for THC content.” Are there other agricultural crops where the USDA rules are crafted in a way that we should anticipate 1 in 5 farmers being forced to destroy their harvest, rather than sell it?