AMS’ Delay of Laboratory Testing Requirement Brings Welcome Relief to Struggling Hemp Producers

by Prianka Sharma, Assistant Chief Counsel

Recently, the U.S. Department of Agriculture’s Agricultural Marketing Service (AMS) announced that it was once again delaying the requirement that domestically produced hemp be tested at a Drug Enforcement Administration (DEA) registered laboratory. Originally, this requirement was set to take effect on January 1, 2023. However, AMS has delayed the requirement until December 31, 2023.

AMS’s delay brings needed relief to small hemp producers who have faced numerous hurdles in being able to produce hemp while complying with other regulatory requirements for production. Such hurdles have included fear of losing their entire crop if it is deemed noncompliant (hot) with the THC threshold of 0.3 percent or less, few options for remediation of hot crops, expensive harvesting procedures and equipment, labor shortages, natural disaster and weather-events, and other pandemic-related challenges.

Advocacy was heavily involved in conveying the interests of small businesses to the agency throughout the rulemaking process. Advocacy wrote three public comment letters to AMS on January 29, 2020, September 11, 2020, and October 8, 2020. Advocacy also visited small hemp producers around the country, and documented regulatory concerns raised by these small businesses in a blog post published in March 2020.

In its letters, Advocacy urged AMS to reconsider the requirement that hemp be tested at DEA certified laboratories, citing a lack of available testing sites, and an inevitable backlog of inventory that require testing. These delays may have amounted to small businesses being forced to harvest a crop before receiving a determination as to whether the crop was compliant with the legal THC level for hemp. This would potentially result in a small business expending money on harvest only to have to destroy their crop if it was determined to be non-compliant. This requirement was one of several concerns that Advocacy raised to AMS.

In response, AMS did address some of the concerns raised by small businesses in its final rulemaking published in January 2021. Among other changes, the agency initially delayed the requirement that labs be DEA certified until 2022. Advocacy summarized key changes to the rulemaking that were beneficial to small businesses in a blog post published on January 19, 2021.

Since publication of the final rule, few strides have been made to address additional regulatory hurdles for small businesses. This recent announcement is a small but welcome action from the agency to address a clear burden for hemp producers. AMS’ acknowledgment of the delays that laboratories are facing in becoming DEA registered, as well as the effects this may have on producers being able to test their crops in a timely manner, shows that the agency is being responsive to industry in this instance. AMS acknowledged that delays in testing may hinder the nascent domestic hemp market. AMS cited a good cause exemption to the rulemaking process, thereby disallowing the need for notice and comment on the extension.

Advocacy is hopeful that the agency will continue to work swiftly to address industry concerns provided they are within agency discretion. This type of reactive response will ensure that hemp producers are given a fair chance to grow and thrive.

Read Advocacy’s comment letter from January 29, 2020.

Read Advocacy’s comment letter from September 11, 2020.

Read Advocacy’s comment letter from October 8, 2020.

Read Advocacy’s blog post outlining outreach efforts.

Read Advocacy’s blog post summarizing key features of the final rule.

Read the final rulemaking.

Read the notice announcing a delay of the requirement that labs be DEA certified.