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The U.S. Department of Agriculture (USDA) had its hands tied when it came to changing the legal tetrahydrocannabinol (THC) limit of 0.3% in its final rule on hemp, which was released Jan. 15 and is set to take effect March 22.

The final rule, which regulates U.S. hemp production under the Agriculture Improvement Act of 2018 (the 2018 Farm Bill), will replace the USDA’s interim final rule (IFR) on hemp, published Oct. 31, 2019. One of the most heated aspects of the IFR was that hemp containing more than 0.3% THC (dubbed “hot hemp”) in state-administered tests is technically considered marijuana (a Schedule 1 controlled substance) and must be disposed of.

After the IFR was released, hundreds of growers and other industry stakeholders opposed the mandated 0.3% THC limit during two separate public comment periods offered by the USDA, with some industry organizers advocating an increase to 1% THC—the concentration threshold for cannabis to have a psychotropic effect or an intoxicating potential, according to the Congressional Research Service’s (CRS) 2019 fact sheet. In fact, Kentucky lawmakers introduced a bill last week that would increase the allowable amount of THC in hemp from 0.3% to 1%.

RELATED: Dr. Ethan Russo Endorses 1% THC Limit for Hemp

“The 2018 Farm Bill, which provides authority to USDA for the domestic production of hemp and provided USDA with a framework of requirements, removed hemp from Schedule I of the Controlled Substances Act, and defined hemp as the plant cannabis sativa L., or any part of that plant, including seeds, derivatives and extracts, with a THC concentration of not more than 0.3% on a dry-weight basis,” a USDA spokesperson told Hemp Grower. “What this means is that the THC concentration limit for hemp was established by the law and is not a requirement that can be changed by regulation but would require congressional action.”

With that in mind, it was no surprise when 0.3% remained the legal limit for hemp in the USDA’s final rule, says Joy Beckerman, principal of Hemp Ace International, which provides professional hemp consulting, legal support and expert services. 

The legal framework of the 0.3% THC limit was laid out in both the 2018 and 2014 farm bills.

“The regulations cannot override what’s written in law,” Beckerman tells Hemp Grower. “In order for a regulation to override what’s written in law, the law needs to change. To ask the USDA to override the U.S. congressional definition of hemp is not something that they had the authority to do.”

Jason Waggoner, the vice president and general manager of Colorado-based EcoGen Biosciences, a leading vertically integrated wholesale CBD manufacturer and supplier of hemp-derived ingredients in the U.S., had a similar take on the USDA’s role in the legal definition of hemp.

“My opinions on that particular level, relative to what the USDA is doing, are probably moot because that’s not their prerogative,” he said. “They’re the regulatory body to enforce the law. So, until such time that that law is revised, I think their hands are probably tied relative to that number.”

While increasing the 0.3% legal limit was out of the USDA’s hands, the final rule did add some stability for hemp industries by providing several improvements based on feedback it received on the interim final rule (IFR), said Eric Steenstra, president of Vote Hemp, an advocacy group based in Washington, D.C.

“I am pleased that USDA listened to feedback from the hemp industry and farmers as they finalized regulations for hemp production,” Steenstra tells Hemp Grower. “The new rules mean less crops will be non-compliant, protecting farmers from crop destruction and losses. This and other helpful provisions make the new hemp rules a significant step in the right direction.”

Some of final rule changes include an expanded harvest window, alternative options for disposing of or remediating hemp, and an increased standard of negligence.

Aside from the legal parameters in the final rule, the 0.3% limit isn’t something that necessarily has any scientific reason to back it up, says Deepank Utkhede, the chief operations officer of Vantage Hemp, a large-scale extraction facility located in Greeley, Colo., which produces a full range of CBD products for customers across the United States.

“I’m an advocate to increasing it, period,” Utkhede says about the legal THC limit for hemp. “The 0.3% was arbitrary. It wasn’t based on any science or data to say, you know, ‘At 0.4%, you’re going to get high.’ It was just a number that was chosen at random by all accounts. So, it’s hard to justify it when there’s no data to support it.”

Beckerman says the genesis of the 0.3% threshold that differentiates between what is considered industrial hemp and marijuana goes back to 1976, when Canadian horticulturalists Ernest Small and Arthur Cronquist published an article in the journal Taxon, entitled “A Practical and Natural Taxonomy for Cannabis.”

In the article, Small and Cronquist said, “It will be noted that we arbitrarily adopt a concentration of 0.3% delta-9 THC (dry-weight basis) in young, vigorous leaves of relatively mature plants as a guide to discriminating two classes of plants.”

Beckerman says the key words in that article are “arbitrarily adopt.” Forty-five years later, lawmakers and public policy institutes, like the CRS, are still referencing Small’s article while shaping the law of the land.  

Future Implications

What are the implications of increasing the allowable amount of THC in hemp?

Specifically, for testing hemp that’s growing in the field, increasing the legal limit would affect both international trade as well as economic stability for farmers, Beckerman says. For example, Canada and the European Union both have legal THC limits of 0.3%.

“That’s the first thing that we need to know and understand as an implication, is that we want to be able to trade internationally,” Beckerman says. “We don’t want to shoot ourselves in the foot by making it so that other countries don't want anything to do with American hemp because we have the 1% versus their 0.3%. So, we do need to be mindful of that.”

Beckerman says she is an advocate of changing the law to remove decarboxylation testing in the field. This process activates compounds such as THC, which can happen through heat or certain oxidation. In short, that method of testing imposes a “total THC” standard, which includes not only delta-9-THC—the primary intoxicating compound of cannabis—but also tetrahydrocannabinolic acid (THCA), a non-psychoactive compound of the plant that becomes THC when in post-decarboxylation.

While the USDA wrote the requirement to test for total THC into the final rule, the 2018 Farm Bill does not define hemp by total THC levels—only delta-9-THC. That means the USDA is interpreting the 2018 Farm Bill to include total THC.

The majority of farmers wouldn’t “pop hot” if they didn’t have to post-decarboxylate and quantify the THCA in their plants, Beckerman says.

Another concern with changing the law to increase THC’s allowable amount to 1% is massive overproduction of extract varieties, Beckerman says.

That said, if the law is changed to increase the legal THC limit to 1%, then farmers would be encouraged to continue to grow extract varieties, which will not provide them with economic stability, Beckerman says.

“And we need to protect our farmers,” she says. “At the same time, we can’t say, ‘Hey farmers, start growing fiber hemp. Just grow fiber hemp. Stop growing extract hemp.’ Really? Who are they going to sell it to? Where are the fiber processors?”

The future of hemp is not in the extract, but rather in the oil seed and the fiber of the cannabis plant, Beckerman said. But more fiber processors are needed to cater to that marketplace.

“They’re coming, let me tell you,” she said. “We’ve got five ones in the United States that are coming in, and there’ll be more, but, as it sits today, am I going to tell a farmer in the state of Washington [to grow fiber hemp] when the nearest fiber processing plant is in Montana and it hasn’t been built yet? No.”

We’ve highlighted four names from the group President Biden has chosen to shape federal policy under his administration and analyzed what each of their selections might mean for cannabis.

The new administration has been sworn in, the Senate gavel has been passed to the Democrats, and the country’s leadership is almost fully set. One major step remains: the Cabinet nomination and approval process.

As we saw from the previous administration, Cabinet members can have a massive impact on the direction of the country, especially as it relates to cannabis policy. With a thin Democratic majority in Congress and a longtime moderate in the White House, the battle for fair cannabis laws is far from over.

Advocates are now looking to Biden’s Cabinet for clues on how the incoming administration will handle cannabis laws. Like the president they’ll be working under, the group doesn’t have a strong positive or negative stance on the plant. But taking a closer look at the previous records of the cabinet members announced so far can provide clues as to what we can expect from the incoming executive branch on cannabis laws.  

Attorney General: Merrick Garland

White House

Before 2021, Garland was best known for being President Obama’s nominee to replace Antonin Scalia on the Supreme Court of the United States in 2016. After his Senate hearing was blocked by Republicans, Garland became an early symbol of the kind of Trump-era partisanship that still divides the country today. It appears Garland will get the chance to serve at the highest level of the federal government, but in a different branch: Biden announced his nomination as AG in the first week of January.

Garland, a Democrat who served as Washington, D.C.’s chief judge from 2013 to 2020, hasn’t come out directly against or in favor of cannabis. The closest definitive opinion was in 2013, when the medical cannabis advocacy group Americans for Safe Access sued the Drug Enforcement Administration in an effort to remove cannabis from Schedule I. Garland was one of three D.C. federal judges who ruled in favor of the DEA, on the grounds that they were the ones who had done the research. “We’re not the scientists. They are,” he said during the case’s 2012 hearing.

During his 2016 Supreme Court nomination, some in the media believed his respect for science would lead him to be an ally to the industry—or at least not a direct foe like Trump’s first attorney general, Jeff Sessions. Given the major legislative achievements that have occurred since his SCOTUS nomination, it’s hard to see Garland presiding over a strongly anti-cannabis Department of Justice. 

Health and Human Services Secretary: Xavier Becerra

Becerra succeeded now-Vice President Kamala Harris as California attorney general in 2017, after Harris was elected to the Senate. He offers a mixed bag on cannabis as the Golden State’s top cop: As recently as October 2020, his California Department of Justice was putting out press releases touting the destruction of over 1 million marijuana plants and talking about the dangers of illegal grow operations. His office frequently mentions the public safety and environmental threats posed by these underground businesses, often sharing statistics about the number of people they’ve arrested in the state each year.

On the other hand, Becerra has been a staunch defender of California’s right to regulate cannabis its own way. In January 2018, when Attorney General Jeff Sessions rescinded the Cole Memo that instructed the federal government to take a “hands-off” approach on regulating state cannabis markets, Becerra released a statement proclaiming, “In California we decided it was best to regulate, not criminalize, cannabis. ... We intend to vigorously enforce our state’s laws and protect our state’s interests.”

In 2017, Becerra also admitted to having personal experience with marijuana: “Yes, at a younger time, I tried it, yes. Meaning, meaning much younger,” he said. Aside from cannabis, Becerra has been at the forefront of California’s feud with former president Trump: His office filed over 100 lawsuits against the administration preceding the one he’ll work in. 

Secretary of Commerce: Gina Raimondo

As the first female governor of Rhode Island, Raimondo led the push for legalization in the smallest state. Her January 2020 proposal went further than most legal-use states, calling for Rhode Island to establish government-run cannabis retailers similar to how alcohol is sold in some states. It was the second time she attempted to legalize in the state—the initial effort in 2019 wasn’t accepted by lawmakers. 

Raimondo would take the office with her work cut out for her, as the country faces its worst economic downturn since the Great Depression and ongoing closures related to COVID-19. Asked about Rhode Island’s push to legalize in a December 2020 interview, she said: “My view: it is only a matter of time. I think we should do it.” It’s tough to imagine Raimondo not bringing her pro-cannabis attitude into a federal government that will start 2021 with a soaring deficit and millions of people in need of economic aid. 

Assistant Secretary of Health: Dr. Rachel Levine

Dr. Levine has been Pennsylvania’s Secretary of Health since 2017. In 2020, she was praised in the media for her handling of the state’s coronavirus crisis—the Pittsburgh Post-Gazette called her the “calm in the eye of the COVID-19 storm.” Dr. Levine has also been a leader in the growth of Pennsylvania’s medical marijuana program over the last few years. In 2019, she expanded the list of qualifying conditions to include anxiety and Tourette’s syndrome. When the pandemic began in March, she loosened restrictions on medical marijuana caregivers to ensure all patients could still access their medicine despite statewide stay-at-home orders.

In a statement congratulating Dr. Levine on her nomination to serve as Assistant Secretary, Pennsylvania Gov. Tom Wolf called her “instrumental in establishing the state’s medical marijuana program.” Aside from her work in medical cannabis, Dr. Levine is noteworthy for being the first openly transgender person to be nominated for a cabinet position. If approved, she would be the highest-ranking transgender person to ever serve in federal government.

What comes next?

All of these Cabinet nominees must still be confirmed by the Senate, which is split 50-50 between the parties. Democrats have the tie breaking vote now that Vice President Harris has been sworn in and will preside over the Senate, but the partisanship and divisiveness of the Trump era will hang over the nomination process, which is expected to continue through the month.

Although these men and women will have a significant impact on cannabis policy in 2021 and beyond, like the president they’ll be working for, they’ve shown a long-running deference to the will of constituents and Congress. They may not be zealous advocates of the fight to legalize, but none has signaled willingness to block state-level cannabis measures or expand federal enforcement of outdated prohibition laws.