Regulate: The Interim Final Rules, Key Participants And Background Checks

by Mark Yurachek

I’m kind of late to the party in offering my initial thoughts on the USDA’s interim final rules on hemp, but I finally got a few minutes to sit down and read them and I do have some thoughts. As a side note, I am a big fan of the CannaLaw Blog and Jesse Mondry wrote an excellent summary of the relationship between criminal history and licensing under the Rules last week. I want to expand upon some of the questions Jesse’s article raises and dig a little deeper into them.

7 USC §1639p(e)(3)(B)(i) and its parallel provisions in the Rules forbid “any person convicted of a felony relating to a controlled substance under State or Federal law before, on or after December 20, 2018,” from “partcipat[ing] in” the USDA program or “to produce hemp under any regulations or guidelines” established under that statute, “during the 10-year period following the date of the conviction.” The Supplemental Information to the Rules states:

[t]o meet this requirement, the State or Indian Tribe will need to review criminal history reports for each applicant. When an applicant is a business entity, the State or Indian Tribe must review the criminal history report for each key participant in the business. The State and Tribe may determine the appropriate method for obtaining the criminal history report for their licensees in their plan. Finally, any person found by the USDA, State or Tribal Government to have materially falsified any information submitted to this program will be ineligible to participate.

The text of the Rule raises a number of questions for me: 1) what discretion do the states have in applying this Rule? 2) what constitutes a “conviction?” 3) what is “participation?” and 4) what happens to an entity which produces without a license?

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Testing, Testing T-H-C

By Mark Yurachek

Catching up on the week’s cannabis news, I came across this press release from DetectaChem concerning a phone app which they claim can measure THC content, which thus would enable police to differentiate between legal hemp and, in many states, illegal marijuana, during a routine traffic stop.

Detectachem’s website indicates that a sample of the cannabis would be tested, as opposed to a breathalyzer-type test which would indicate concentration in the body. The website does not indicate what kind of testing is used to reach the determination and, as I wrote here, it is important to know what kind of testing is being used.

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The Thin Green Line: The Need for Uniform Testing in the Hemp Industry

The Need for Uniform Testing in the Hemp Industry

by Mark Yurachek

When I was young my father had a t-shirt which had 4 identical cartoon pictures with the captions, “Banker, Broker, Lawyer, Crook.” I was reminded of that shirt while considering what would happen to a hemp processor in Georgia, where I work primarily, who imports hemp which was certified by an out-of-state lab as having a total delta-9 tetrahydrocannabinol (THC-Δ9) concentration within acceptable standards, only to have a Georgia lab conclude the opposite.

In Georgia, testing for THC-Δ9 is a crucial aspect of the hemp trade, as it potentially spells the difference between a hemp farmer and a marijuana trafficker. Per O.C.G.A. §2-23-8, the Georgia Department of Agriculture (DOA) has the right, itself or through contracted labs, to test all licensees’ (growers) and permittees’ (processors) hemp randomly. If the testing reveals a THC-Δ9 concentration of more than 0.3 percent on a dry weight basis, the entire crop with the same GPS position (for licensees) or “all related hemp products” (for permittees) will be destroyed at the owner’s expense.

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