How the new USDA law could put thousands of hemp farmers at risk and how to protect yourself as a hemp farmer in 2020.

After several years of states being allowed to operate under independent pilot hemp programs, blanket federal legislation is now coming online.

What you will learn in this article

The new interim final rule which was made law in October 2019 has raised a lot of concerns to both existing farmers as well as to those wanting to join this new gold rush.

Under the guidelines of the state-run pilot programs, historically the worst that could happen to the farmer if his crop went “hot”, meaning it crossed over the total of 0.3% THC, would be the loss/destruction of the crop. Now, however, the testing requirements are tighter, they include the measurement of THC-A combined with Delta-9, the plant will be sampled from its most potent part rather than including stalk and waterleaf.

Going forward the penalty for exceeding the THC limit is not just a potential loss of the crop but includes the possibility of becoming a criminal offense.

Let’s take a look at some of the potential risks these changes may pose to the farmer and some of the ways a farmer can be sure to avoid crop loss or prosecution.

What type of hemp plant is being grown for CBD?

First of all, cannabis is a dioecious plant. What this tongue twister means is that there are both male and female plants.

Male plants contain only small amounts of cannabinoids, so they aren’t much on the radar of those seeking this plant for the production of CBD, THC, or other compounds.

Male plants are usually useful only for industrial applications, such as fiber or grain production. To be clear I will be talking about female plants only that are grown for Cannabidiol (CBD) and other beneficial compounds.

Female Hemp Plant

To find out more about the hemp plant and some of the basics of hemp farming check out our Farmers Guide to Hemp, Click Here to find out more.

Does the 0.3% rule apply to the whole plant?

Cannabinoids aren’t presented throughout the plant homogeneously. Does the 0.3% apply to the whole plant average, or does it apply to the flowering parts that are rich in cannabinoids?

  • Prior to 2020 the 0.3% THC for many states was calculated by sampling from the whole plant or large parts of the plant containing stalk as well as leaf material.
  • Under the new rule, this sampling is done only from the primary flower of the plant which contains the highest concentration of THC.

What does Total THC mean?

There are four main types of Tetrahydrocannabinol identified in the plant. They are THCA, THCV, Delta-8 THC, and Delta-9 THC. They all have their own independent medicinal and/or intoxicating effect.

Prior to 2019 many state programs were allowed to disregard all but one of these types of THC leaving only the Delta-9 to be tested, Delta-9 is known for its intoxicating high, however, the human body can metabolize the other types for similar intoxicating effects.

Therefore, the new USDA law no longer counts only Delta-9 THC but reaffirms what was stated in both the 2014 and 2018 farm bill regarding the testing for total THC.

The federal law now requires the total THC content of the plant to remain below 0.3%

The benefit for the consumer is that they can smoke or ingest the flower or products made from the flower without worrying about intoxication.

The downside for the farmer is that this rule makes, according to experts, eighty to ninety percent of the CBD rich hemp produced in the past several seasons non-compliant. This makes the selection of genetics critical.

What are the possible punishments for farmers if they are not in compliance?

While operating under the pilot programs of many states, the most painful slap on the wrist a farmer might get for growing a “hot” crop was being forced to destroy the crop.

This has already forced many farmers into bankruptcy.

The penalties under the new rule have increased. If the plants in the field test over 0.3% but under 0.5% total THC, the crop will be destroyed just like in previous years. However, if there are plants that have 0.5% or more total THC, the farmer breaks the law, and criminal charges may follow.

The sad part is that the farmers are, in most cases, innocent. They buy the seed from the seed company or distributor and grow what they purchased.

Since the presence of THC and CBD are somewhat tied together in a ratio, and with the lack of clarity on the federal testing standard, in past years many hemp seed suppliers have been selling seeds that are not multi-state compliant.

Although these varieties may yield higher CBD they also carry higher THC. When measured by the new federal standard most are no longer compliant and will not test with a total THC content of less than 0.3%.

In other words, those seed suppliers have up to now been able to make a quick buck without looking at either the 2014 or 2018 federal farm bill for their breeding programs.

Those same seeds that have been sold in previous years will not pass the current law and to the farmer, the result from purchasing them could be quite consequential.

How can farmers protect themselves and their crops?

The purchase of seeds and the future for the farmer doesn’t have to be a gamble. The new federal law brings a lot of positives for farmers as well. Available with the new federal law are banking, lending, and crop insurance opportunities to name a few.

If there ever was a time to jump into this industry, this is it.

With this crop the seed you choose to grow will be the most critical choice you make this season as much of the seed on the market is not federally compliant. When it comes to ensuring you get seeds that will perform at the highest and safest level, here are a few things the farmer should look for from their seed provider.

Certificates of Analysis or COA’s from a state or federally accredited testing laboratory that show cannabinoid content are an industry standard and should always be provided. When looking at the COA don’t be fooled by Delta-9 and look for the Total THC content. Ask to see COA’s from a finished flower in the field rather than seeded plants or indoor trials so you know the sample is representative of what you will grow.

Knowing that hemp seed can produce both male and female plants be sure to request feminization rates for the seed you are purchasing. These feminization rates should be from a reputable independent third party and should be done with a large sample population, preferably 200 or more samples per test batch.

Some of the feminization testing is done on sample sizes of twenty or less and in many cases done internally which doesn’t give the buyer any real guarantee.

Lastly, a seed producer should be able to provide you with a third party verified germination rates and purity tests. Depending upon which state you are operating in your Dept. of Agriculture may actually require these purity documents which are standard for most agricultural seed crossing state lines.

Any reputable seed producer will be able to provide you with this documentation. By requiring this documentation from your seed provider, you will likely end up with high-quality seed but remember that almost any data can be manipulated or falsified so ask for references wherever possible. Every one of these documents has a test number so do not hesitate to call the laboratories directly and ask them about the validity of the test and if the seed company has a history of testing with them.

Don’t be afraid to ask for a reference or testimonial from someone that grows in the same climate like yours. Not all seeds are suitable for all growing conditions even if they do check the rest of the boxes for you.

Wherever possible know the breeder of the seed you purchase. Confirm that the breeder is operating in a pest, pathogen, and virus free environment as well as working from pathogen and virus free mother stock. A good breeder should quickly provide all the information mentioned.

Keep in mind this is still a “Wild West” type of industry with minimal regulation on seed companies.

Would you prefer to buy genetics that came to the breeder as open-source? Or do you see the value in paying a little more per seed for the security of having varieties that were developed by the breeders themselves?

With hemp more than many crops having stable genetics is the key to success and planting an open-source variety that could have undergone manipulation or may have become infected through poor handling is a risky move. Second and third generations (F2-3/Filial 2-3) of the hemp plant can be diluted or highly unstable as we see with many of the varieties not purchased directly from the breeding source.

Having a uniquely developed strain by the breeder is the most reliable way to ensure success.

The well-bred and properly produced seed will create plants that are less prone to disease and pests. Most importantly a stable variety will give you stable potency levels and will not start producing THC out of the blue.

As the industry develops there are certain to be more companies with Total THC (federally compliant) varieties coming to the marketplace but for 2020 it is buyer beware in most instances. There are a few companies out there, such as Davis Farms of Oregon ( that were able to produce CBD rich strains while staying far below the 0.3% of total THC. Unlike many other companies, they anticipated these requirements becoming law. With decades of breeding practice overseas as well as providing their genetics to scientists for research, they are currently one of the safest investments for the farmer.

Being part of the hemp industry is exciting without a doubt as the plant may be the single most helpful plant known to humankind. There is a bright future for this plant, and as consumers, it will likely impact our lives in many ways. It may be in the supplements we ingest, the clothes we wear, or the materials we build with, but without a doubt, hemp is going to impact the consumer markets. As farmers, you have always been the front end of the consumer markets.

Hemp is no different and those of you who avoid the pitfalls and learn the quickest are certain to lead and prosper for years to come.

Where do you stand? Are you ready to take hold of your future?