Hemp rules: CBD in food and animal feed now regulated; permits to grow hemp still on hold

Field of hemp. Credit: René Nijs via Flicker

Rules regulating use of hemp extract in food, dairy products and animal feed in Florida took effect Jan. 1, but growers eager for permits to cultivate hemp here are still on hold.

“We’re proud to roll out these final rules for CBD in food and dairy products, open applications for hemp food establishment permits, and ensure our inspectors are ready to enforce the rules and uphold public safety,” said Commissioner Nikki Fried, head of the Florida Department of Agriculture and Consumer Services, in a press release announcing her department’s new rules.

Florida can now permit and inspect food, dairy products and animal feed that contain hemp extract, chiefly in the form of ingestible CBD oil, which were unregulated until now. Popular consumer items marketed as health products include hemp seeds, hemp milk, hemp ice cream and hemp-infused drinks.

Florida’s exuberant plans to grow hemp and convert it into wildly popular CBD oil is on pause since the U.S. Department of Agriculture applied the brakes on Oct. 31. That is when it released unpopular rules setting a low cap on the THC content allowable in cultivated hemp. THC is the psychotropic agent in hemp’s still-outlawed cousin, marijuana. Only medical marijuana, controlled by medical prescription, is legal.

For hemp to be legal, it must contain only low levels of THC, and growers say the cap set by the USDA is unrealistically low.

Hemp advocates said the USDA rule sent a “shock wave” through the industry because growers are no longer confident they can grow hemp that meets the low threshold for THC, defined as “delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.”

Like most crops, hemp is sensitive to variations in temperature and moisture. In hemp, those variations over a growing cycle alter its intended THC content. A crop that tests “hot” – too high in THC – at the time of harvest would be illegal to sell and have to be destroyed, resulting in a total loss for the grower. Hemp growers around the country are reporting high rates of hemp crops testing “hot” despite growers’ best efforts.

In light of widespread objections to the rule, the USDA is accepting public comments through Jan. 29.

Fried wanted her department to start issuing hemp-cultivation permits at the first of this year but now predicts a delay until sometime in the first quarter, while it revises state rules to align with the USDA rules.

The USDA’s 0.3 percent cap on THC in hemp is the latest disruption in Florida’s zealous hemp-growing ambitions. States around the country are questioning the viability of developing thriving hemp industries when there are too many parties eager to grow the crop but too few facilities in place to process and distribute it, as is the case in Florida.