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HEMP IS NOT A CONTROLLED SUBSTANCE


According to cannabusiness.law/

Hemp initially became exempt from the CSA, and removed from the list of controlled substances, by virtue of the 2014 Farm Act when produced pursuant to a state’s industrial hemp pilot program. Nearly forty (40) states created pilot programs under the 2014 Farm Act. The current Farm Bill, enacted at the end of 2018, expanded the definition of hemp from the prior Farm Bill. The current Farm Bill defines hemp as follows:

(1) HEMP.—The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9-tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis. (emphasis added)

The Farm Bill treats hemp as an agricultural commodity, putting it on par with wheat, grain, and soy. Hemp is not a controlled substance under the CSA. Importantly, under the Farm Bill the sole criteria for distinguishing between lawful hemp and unlawful marijuana is the concentrations of delta-9 THC.

PRE-HARVEST HEMP MUST ACCOUNT FOR TOTAL THC

Although not found in any federal statute or rule, the phrase “Total THC” is a quasi-legal term that has been adopted by the hemp industry. It refers to the total potential delta-9 THC content in a hemp sample. To determine the total potential delta-9 THC in a sample, the concentrations of tetrahydrocannabolic acid (THCA) must be taken into account. This is because THCA can convert to delta-9 THC in a chemical process called decarboxylation under certain conditions, including when it is subjected to heat.

Under the USDA Final Rule, a hemp crop is deemed to be compliant (ie, lawful hemp) if it is tested no more than thirty (30) days prior to harvest using a postdecarboxylation method and the results show that the delta-9 THC value does not exceed 0.3% on a dry weight basis. The Final Rule addresses “Postdecarboxylation” as follows:

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