USDA Won’t Enforce Rule Requiring Hemp To Be Tested At DEA Labs For Another Year Due To ‘Inadequate’ Access For Growers

The U.S. Department of Agriculture (USDA) is once again delaying enforcement of a rule requiring hemp growers to test their crops exclusively at labs registered with the Drug Enforcement Administration (DEA), citing “setbacks” at the agency that have led to “inadequate” access to such facilities.

This is the third year in a row that USDA has delayed enforcement of the lab testing policy for hemp required under the 2018 Farm Bill that federally legalized the crop. Growers will still need to follow other testing rules to ensure product safety compliance, but the DEA registration requirement now won’t be enforced until at least December 31, 2025 under the newly extended timeline.

“USDA is delaying enforcement of this requirement based on input received from state and tribal governments and third-party cannabis testing facilities that have experienced delays in completing the DEA laboratory registration process,” the department said. “Because of these setbacks in the completion of the DEA process, USDA is concerned there will be inadequate approved hemp laboratory testing capacity for the 2025 growing season. Laboratories testing hemp must comply with all other regulatory requirements.”

USDA said that “potential market entrants and related industries are relying on USDA to provide guidance in their preparations for the 2025 growing season.” Due to the urgency of that need, the administrator “finds there is good cause to exercise enforcement discretion without prior opportunity for notice and comment and to make it effective immediately.”

“For the same reasons, the Administrator finds that even if this exercise of enforcement discretion were subject to the public participation provisions of the Administrative Procedures Act, there is good cause to proceed without notice and comment,” the department said.

Industry stakeholders have consistently criticized the proposed requirement that hemp could only best tested for THC content at DEA-registered facilities. They’ve argued that the limited capacity has led to bottlenecking and that laboratories can conduct the testing just as effectively even if they aren’t certified by the federal drug agency.

USDA has been working to bolster the hemp industry, including by appointing a number of industry stakeholders to a federal trade advisory committee that’s meant to support efforts to promote U.S.-grown cannabis around the world.

The department also awarded $745,000 to the National Industrial Hemp Council (NIHC) to support efforts to promote the industry internationally in emerging markets across the world. In 2020, USDA awarded NIHC $200,000 as part of a different grant program.

The latest grant round was distributed during a precarious time for the hemp industry. While a USDA report found that the market started to rebound in 2023 after suffering significant losses the prior year, it’s still facing uncertainties as congressional lawmakers have advanced bills that would effectively ban most consumable hemp-based cannabinoid products—a major sector of the cannabis economy.

The Congressional Research Service (CRS) said in a report in June that hemp provisions included in one spending bill that moved through committee could also “create confusion” for the industry due to a lack of clarity around the type of allowable products.

The latest Farm Bill that advanced through the House Agriculture Committee in May also contained provisions that would reduce regulatory barriers for certain hemp farmers and scale-back a ban on industry participation by people with prior drug felony convictions.

Specifically, it would make it so USDA, states and tribal entities could choose to eliminate a policy that prevents people with felony drug convictions in the past 10 years from being licensed to produce industrial hemp.

Lawmakers and stakeholders have also been eyeing a number of other proposals that could be incorporated into the Farm Bill—and which could come up as proposed amendments as the proposal moves through the legislative process—including measures to free up hemp businesses to legally market products like CBD as dietary supplements or in the food supply.

Recent USDA data showed a slight rebound in the hemp economy in 2023—the result of a survey that the department mailed to thousands of farmers across the U.S. in January. The first version of the department’s hemp report was released in early 2022, setting a “benchmark” to compare to as the industry matures.

Bipartisan lawmakers and industry stakeholders have sharply criticized FDA for declining to enact regulations for hemp-derived CBD, which they say is largely responsible for the economic stagnation.

To that end, FDA Commissioner Robert Califf testified before the House Oversight and Accountability Committee in April, where he faced questions about the agency’s position that it needed additional congressional authorization to regulate the non-intoxicating cannabinoid.

USDA is also reportedly revoking hemp licenses for farmers who are simultaneously growing marijuana under state-approved programs, underscoring yet another policy conflict stemming from the ongoing federal prohibition of some forms of the cannabis plant.

For the time being, the hemp industry continues to face unique regulatory hurdles that stakeholders blame for the crop’s value plummeting in the short years since its legalization. Despite the economic conditions, however, a recent report found that the hemp market in 2022 was larger than all state marijuana markets, and it roughly equaled sales for craft beer nationally.

Meanwhile, internally at USDA, food safety workers are being encouraged to exercise caution and avoid cannabis products, including federally legal CBD, as the agency observes an “uptick” in positive THC tests amid “confusion” as more states enact legalization.

Also, in August, USDA advised stakeholders about a policy change in China that will impose tighter regulations on hemp-derived CBD, though it says the rules are expected to benefit the industry.

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Photo courtesy of Brendan Cleak.