TDA Hemp Production Plan Part II: Sampling & Testing of Hemp

By: Paul Stevenson

Now that you have read Part I of the TDA Hemp Production Plan series on the application and license requirements for hemp producers, it is crucial to understand the rules and methods for the sampling and testing of hemp for tetrahydrocannabinol (“THC”) concentration levels. Thankfully, TDA’s sampling and testing provisions are the same or extremely similar to USDA’s sampling and testing provisions. 

If in violation of TDA’s sampling and testing provisions, hemp license holders might be subject to serious consequences such as enforcement action, corrective action plans, and/or criminal liability. Violations will be discussed further in Part III of this Series, but hemp license holders may avoid them if they simply comply with the following provisions.

Inspections, Harvests, and Sampling Collections

Now that you are a hemp license holder, you are almost ready for harvest; however, you must ensure your hemp crops are in compliance with TDA’s sampling and testing standards.

TDA largely adopted the USDA’s regulations on hemp inspections. Essentially, TDA, DEA, DPA, and local law enforcement have unrestricted access to randomly inspect all hemp plants grown or harvested by hemp license holders and all facilities and locations where hemp is produced or stored. For scheduled sampling collections, “[T]he producer or an authorized representative of the producer shall be present at each lot undergoing sampling and testing.” 4 TAC § 24.20(c). 

Hemp license holders must wait to harvest their hemp crops until samples have been collected. After the samples have been collected, the hemp license holder must harvest the crop within 15 days of that sample collection, unless TDA authorized otherwise. See id. at § 24.23(b). Before any processing occurs, hemp license holders need to ensure that any cannabis from harvested lots must not be commingled with other material or with cannabis from any other harvested lot. Harvested hemp plants cannot be sold or used by hemp license holders until “a test of the sample(s) for the lot associated with the harvested plants is at or below the acceptable hemp THC level.” Id. at § 24.23(d).

Testing for TDA’s Acceptable Hemp THC Level

TDA’s methods and requirements for the testing of license holders’ hemp plants are nearly identical to USDA’s methods and requirements.

Before any testing occurs, hemp license holders must ensure the laboratories that will be testing their hemp samples and hemp plants are independent, registered testing laboratories. Independent testing laboratories must complete and submit a form provided by TDA for registration, and they “must be accredited by an independent accreditation body in accordance with International Organization for Standardization ISO/IEC 17025 and must be registered with DEA.” Id. at § 24.24(a)(3). If a hemp license holder selects an independent, registered laboratory to conduct testing, the hemp license holder shall not have any ownership interest in the laboratory, and if the laboratory is a publicly traded company, the hemp license holder shall not have 10 percent or more ownership interest. See Tex. Agric. Code § 122.151(c). Additionally, if a hemp license holder uses a registered laboratory’s testing services, she will be required to pay that laboratory’s applicable fees. According to TDA, a list of all TDA-registered laboratories will be posted on TDA’s website. Lastly, a hemp license holder has the option of testing their hemp samples at the State of Texas Laboratory as long as they pay the applicable fees. The State of Texas Laboratory will also be used for testing if a hemp license holder fails to use a registered laboratory. See id. at § 24.24(c).

Independent, registered laboratories are required by TDA to follow certain testing procedures, such as:

[A] analytical testing of samples for delta-9 tetrahydrocannabinol concentration levels must use post-decarboxylation or other similarly reliable methods approved by the Department . . . [and] [t]he testing methodology must consider the potential conversion of delta-9 tetrahydrocannabinolic acid (THCA) in hemp into delta-9 tetrahydrocannabinol (THC) and the test result reflect the total available THC derived from the sum of the THC and THC-A content. Testing methodologies meeting these requirements include, but are not limited to, gas or liquid chromatography with detection. Id. at § 24.24(b)-(c).

Identical to the USDA plan, TDA clearly states that THCA will count towards total THC content. 

Furthermore, these independent, registered laboratories must use validated methods for all testing activities to measure the “acceptable hemp THC level” of license holders’ hemp plants. Under the TDA plan, “acceptable hemp THC level” is defined as the following:

[A] delta-9 tetrahydrocannabinol content concentration level on a dry weight basis, that, when reported with the laboratory’s measurement of uncertainty, produces a distribution or range that includes a result of 0.3% or less. For example, if the reported delta-9 tetrahydrocannabinol content concentration level on a dry weight basis is 0.35% and the measurement of uncertainty is +/- 0.06%, the measured delta-9 tetrahydrocannabinol content concentration level on a dry weight basis for this sample ranges from 0.29% to 0.41%. Because 0.3% is within the distribution or range, the sample is within the acceptable hemp THC level for the purpose of plan compliance. This definition of “acceptable hemp THC level” affects neither the statutory definition of hemp, in 7 U.S.C. §1639o(1) and Texas Agriculture Code §121.001, nor the definition of “marihuana,” in 21 U.S.C. §802(16) and in Texas Health and Safety Code §481.002(26). Id. at § 24.1(2).  

Thus, since this definition of acceptable hemp THC level does not affect certain state and federal criminal definitions of “hemp” and “marihuana,” hemp license holders need to remain diligent in keeping their hemp plants at or below a 0.3 percent THC concentration level. This definition of acceptable hemp THC level is simply a method of tracking the unreliability of test results, and it provides flexibility via the “measurement of uncertainty,” which acts as a margin of error in evaluating the accuracy of test results. Reported levels of THC concentration might not be the sample’s actual concentration…the actual THC concentration falls within a range as determined by the combination of the acceptable hemp THC level and the measurement of uncertainty.

Excessive THC Levels and Proper Disposal Methods

Within 14 days of the sample collection date, the testing laboratory must send the test results to TDA and the hemp license holder. Under the TDA plan, if there is a showing of at least 95 percent confidence that a sample test result exceeds the acceptable hemp THC level, then TDA will consider this to be conclusive evidence that one or more cannabis plants within the tested lot contains an excess of permissible THC concentration. The laboratory then must conduct a final test and “promptly notify” TDA and the hemp license holder if the test results show that the THC concentration level exceeds the acceptable hemp THC level. See id. at § 24.28(c).  

Within seven days of a hemp license holder receiving the above-mentioned test results, the hemp license holder must submit a completed “disposal report” to TDA. See id. at § 24.30(a). Upon receiving this “disposal report,” TDA may potentially send an authorized inspector for a field inspection. Additionally, within seven days of receiving the “disposal report,” TDA will inform the hemp license holder of the proper methods of disposal. See id. at § 24.30(c). 

Typically, TDA will send a notice of disposal to the non-compliant hemp license holder. Within five days of receiving this notice of disposal, the hemp license holder must contact a DEA-registered agent or other authorized entity to carry out the disposal process. See id. at § 24.31(c)(1). Furthermore, hemp license holders must pay any disposal fees and must notify TDA and USDA of their intent to dispose of any non-compliant plants and verify it with proper documentation. See id. at § 24.31(d).

Preview of Part III:

In Part III, the final section of this Series, we will analyze the provisions of the TDA plan regarding negligent violations and license suspension and revocation. Lastly, we will explore TDA’s requirements relating to the transportation of hemp, as well as the rules and regulations concerning hemp seed.

Ritter SpencerTDA Hemp Production Plan Part II: Sampling & Testing of Hemp

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