This is not a substitute for legal advice.
On July 6, 2020, the Maryland Department of Agriculture released the proposed hemp plan, required under the 2018 Farm Bill to allow for more hemp production in the state. The 2014 Farm Bill opened the door to limited hemp production, and several Maryland growers have been participating in the state’s pilot research program for the past two years. With this move towards a hemp production plan, Maryland growers need to pay attention to the changes between the two programs. One of the most significant changes will be the definition of what is considered hemp in the state. While the 2014 Farm Bill focused on hemp containing less than 0.3 percent of delta-9-tetrahydrocannabinol (THC) on a dry weight basis, the 2018 Farm Bill will look at a total concentration of THC of less than 0.3 percent on a dry weight basis. These regulations, once finalized, would take effect on November 1, 2020, and the state would move away from the pilot research program regulations.
2014 Farm Bill Testing Rules
Maryland is currently operating under the 2014 Farm Bill pilot research program for hemp. Under this law, the definition of industrial hemp required the plant to have less than 0.3 percent of delta-9-THC on a dry weight basis ( 7 U.S.C. § 5940(a)(2)). The current regulations for the Maryland pilot research hemp require hemp grown in the state to test with delta-9 THC concentration below 0.3 percent on a dry weight basis (§ 15.01.16.07(D)). Hemp testing higher than 0.3 percent of delta-9 THC on a dry weight basis would be considered marijuana and would need to be destroyed, as is the case for any state operating under the 2014 Farm Bill still. This testing provision will change as hemp production expands with the 2018 Farm Bill.
2018 Farm Bill Testing Rules
Moving from a pilot research program for hemp production in the United States, Maryland’s proposed definition may appear similar to the 2014 Farm Bill. Still, this definition might not be what it seems. The proposed definition is “the plant Cannabis Sativa L. and any part of that plant, including all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9-THC concentration that does not exceed 0.3 percent on a dry weight basis.” (47:14 Md. R. 681). As we read further into the proposed regulations, we begin to understand how the 2018 Farm Bill differs from the 2014 Farm Bill.
Looking at the testing provisions in the proposed hemp rule, the THC test to determine delta-9 THC concentration on a dry weight basis requires testing procedures using post-decarboxylation or other similarly reliable methods. The procedures will measure the total available THC, which is the sum of delta-9 THC and THC-A. THC-A is the acid form of THC and has no psychoactive properties but can easily convert to THC. Decarboxylation converts THC-A into delta-9 THC. According USDA’s interim final rule released on October 31, 2019, the 2018 Farm Bill requires using post-decarboxylation to determine the total concentration of THC and not just delta-9 THC (84 FR 58522).
Under the proposed plan, hemp grown in the state must not only have less than 0.3 percent delta-9 THC on a dry weight basis, but the hemp must also contain THC levels equal to or less than 0.3 percent post-decarboxylated THC. This is an extra layer which growers need to be aware of moving into 2021.
What Does This Mean?
You might have participated in Maryland’s pilot research hemp program, and many of the areas in the proposed plan might seem similar to you. One significant change will be in testing for what is considered hemp and what is not. Although the definition of hemp may read the same as before, it is worth paying attention to not just the state regulations, but the federal law and regulations driving. If you had experience growing hemp under the previous regulations, this change might mean that you need to adjust how you harvest hemp to keep total THC levels within the allowable range.
If you are interested in reviewing Maryland’s proposed plan, you can find a copy on MDA’s website, by clicking on the Proposed Regulations for Public Comments option under Quick Links. Comments are being accepted until August 5th.