On November 20th, the Washington State Department of Agriculture (“WSDA”) released the hemp cultivation plan (the “Plan”) that it intends to submit to the US Department of Agriculture (“USDA”) along with a corresponding set of hemp regulations (“Hemp Rules”). This post will provide an overview of Washington’s hemp plan.
Recordkeeping, Violations, and Inspections
The Plan appears to be in-line with the USDA’s interim hemp rules, released last month. The Plan outlines recordkeeping requirements, including how the WSDA will track land where hemp is grown. The Plan also covers some requirements necessary to obtain USDA approval, including the following:
- The treatment of violations, both negligent and those with a higher culpability;
- The WSDA’s annual inspections for (a) unauthorized plant growth, (b) hemp in any form on the registered land area, (c) rogue, volunteer, or off-type hemp plants; (d) audits of existing business data and reports related to hemp; (e) compliance with required signage; and (f) assessing compliance with other applicable license terms and conditions;
- The WSDA’s ability to report information on producers to the USDA; and
- Certifying that the WSDA has resources to undertake the Plan.
The Plan lays out the WSDA’s procedure for testing hemp:
WSDA tests hemp for Total THC using High-Performance Liquid Chromatography (HPLC) for the determination of Δ9-Tetrahydrocannabinol (THC) and Δ9-Tetrahydrocannabinolic Acid (THC-A). Additionally, if necessary, WSDA will conduct moisture testing to determine total moisture.
The Hemp Rules, specifically WAC 16-306-090, require testing by a WSDA-run or approved laboratory using post-decarboxylation or other testing methods approved by the WSDA. WSDA will apply the measurement of uncertainty (+/- 0.06%) outlined in the USDA’s interim hemp rules to the reported THC concentration to determine if hemp material is in compliance with the 2018 Farm Bill. The Plan also includes a detailed sampling protocol for testing hemp. As we’ve written before, these testing requirements are likely to hurt the hemp industry.
Destruction and Disposal
The Plan outlines how the WSDA will dispose of hemp that tests “hot” (too much THC). If that happens, the entire lot must be destroyed. There is a caveat as a hemp producer may request a resampling or retesting within 30 days.
Producers must document the destruction or disposal of all noncompliant hemp and provide corresponding documentation to the WSDA. Producers may subject noncompliant hemp to the following disposal or destruction methods:
- Tilled under the soil;
- Made into compost;
- Collected for destruction by a person authorized to handle marijuana; and
- Other manner approved by the department that would render the hemp non-retrievable.
In some cases, the WSDA also “may give notice of noncompliance to the appropriate law enforcement agency and the Washington State Liquor and Cannabis Board which regulates marijuana, with a summary of the actions taken to destroy the noncompliant hemp.”
The WSDA also will require that producers obtain a THC certification form from WSDA, showing the results of THC testing, for any hemp that leaves the producer’s premises. Producers must ensure that this form accompanies hemp traveling through the state, along with a copy of the producer’s license. For hemp plant material that was grown elsewhere, the WSDA requires a bill of lading or other documentation demonstrating that the hemp was legally imported into Washington and is legally present in the state.
Hemp as food
Washington’s Hemp Plan incorporates some provisions that deviate from the 2018 Farm Bill. Remember, that states and Indian Tribes are free to venture outside of the confines of the 2018 Farm Bill, so long as all the requirements relating to hemp production are met. In other words, the 2018 Farm Bill sets the floor for hemp regulation and states and tribes can expand on that. That’s what Washington has done with hemp cultivated for food.
As a reminder, Washington recently passed Senate Bill 5276, which overhauled hemp production in Washington state. SB 5276 provided that hemp could be used in food. That section of the bill is now codified at RCW 15.140.040 (5), which reads as follows:
The whole hemp plant may be used as food. The [WSDA] shall regulate the processing of hemp for food products, that are allowable under federal law, in the same manner as other food processing under chapters 15.130 [(Washington’s Food Safety and Security Act)] and 69.07 RCW [(Washington Food Processing Act)] and may adopt rules as necessary to properly regulate the processing of hemp for food products including, but not limited to, establishing standards for creating hemp extracts used for food.
The Hemp Rules (WAC 16-306-100) establish a hemp food certification program where hemp producers can voluntarily certify hemp grown for human consumption. The WSDA will provide certification if a producer tests for the following:
- Nonapproved pesticide or herbicide use. A list of approved pesticides and herbicides will be maintained on the WSDA’s website;
- Mycotoxins; and
- Heavy metals, including inorganic arsenic, cadmium, lead, and mercury.
In order to participate in the certification program, the producer must inform the WSDA of their desire to participate in the program and also must reimburse the WSDA the costs of testing.
While WSDA has legal authority over hemp and for manufactured products derived from hemp that fall within the definition of food, WSDA does not have legal authority over all manufactured products. The Hemp Rules (WAC 16-306-020) outline activities outside the scope of the hemp program:
The following activities are not subject to regulatory sanctions or penalties under this chapter, except for the limitation of THC content under chapter 15.140 RCW:
(1) Possessing, transporting, marketing or exchanging legally obtained hemp and hemp products;
(2) Growing, producing, possessing, processing, marketing or ex- changing marijuana as defined in RCW 69.50.101.
The WSDA issued a memo in August indicating that hemp-derived CBD (“Hemp-CBD”) is not an approved ingredient in food. It will be interesting to see how WSDA handles hemp in food going forward. On the one hand, Washington law allows the whole hemp plant, including flower, to be used in food, in accordance with federal law. However, the Food and Drug Administration (“FDA”) has only determined that a few hemp-seed or hemp-stalk ingredients are generally regarded as safe for use in foods. The FDA has also indicated that Hemp-CBD cannot be added to food. CBD is likely to be present in hemp flower, which can be used in food. The WSDA will need to determine how it will treat food that may contain Hemp-CBD from Washington-grown hemp flower.
We’ll continue to monitor the WSDA’s rollout, including whether or not the Plan is altered in light of feedback from the USDA. The USDA has 60 days to approve or deny the plan, so the earliest it could be implemented would be January 2020.