Locke Lord: More THC In Hemp? Senator Rand Paul Proposes Significant Changes To Hemp Laws

More THC In Hemp? Senator Rand Paul Proposes Significant Changes To Hemp Laws

Kentucky is one of the nation’s top-producing hemp states, which is one of several reasons Senator Rand Paul (R-KY) has been a strong Republican force for cannabis reform. It is no surprise then that Senator Paul recently reintroduced the Hemp Economic Mobilization Plan Act (HEMP Act) to address perceived problems hindering the industry after hemp was legalized federally in the 2018 Farm Bill.

The HEMP Act would make several significant changes to current law, including:

  • Amending the definition of “hemp” in the 2018 Farm Bill. Currently hemp is defined as the Cannabis Sativa L. plant and any part of that plant “with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.” The HEMP Act would increase the THC threshold over threefold, to 1.0%.
  • Mandating testing of hemp-derived products rather than hemp itself. Currently, tests are conducted on hemp plants or hemp flower to determine the percentage of THC. Testing at that stage, however, leads to more variability, as environmental factors influence the THC level. The HEMP Act will increase predictability by testing only hemp-derived products rather than hemp flower or the hemp plant.
  • Creating a definitive margin of error in testing. Under current law, there is reference to the “measurements of uncertainty” in hemp testing, but no quantification of those measurements. The HEMP Act would create a .075% baseline standard measurement of uncertainty/margin of error to address this issue and provide certainty to hemp producers.
  • Mandating all hemp shipments include a copy of the producer’s license or a lab certificate proving the product is hemp. It is difficult, if not impossible, to distinguish between hemp and marijuana with just the eye test, which led to many legitimate hemp shipments being seized as suspected marijuana after the 2018 Farm bill. The HEMP Act would require evidence of legitimacy to be included with every shipment with the goal of limiting such seizures.

The big proposed change is the increased THC limit for hemp, and we are interested to see the reaction that this proposal draws. On one hand, the current 0.3% requirement has clearly created problems for the hemp industry, and I think most people would agree that fixes are appropriate. After all, it does seem unfair that hemp producers sometimes lose entire crops that test “hot,” even if it is just slightly “hot,” especially when environmental factors outside the producer’s control can influence the THC level. But at the same time, does increasing the THC threshold fix that problem? Are hemp producers now going to produce hemp products that are closer to 1.0% THC, such that they will still lose products for testing over that new threshold? Moreover, is there going to be concern from the more-regulated marijuana industry that the increased THC limit may allow hemp producers to sell intoxicating products without the same legal restrictions?

We will be watching the debate closely. We applaud Senator Paul for his efforts to address some of the problems that have hindered the hemp industry in recent years, and we hope to see some reasonable fixes in the near future. Stay tuned to our blog for more updates on developments in the cannabis industry.

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