Current Reporting Requirements for THC Concentration in California
Presently, in California, the law is silent on critical areas regarding THC reporting requirements for industrial hemp. As defined in the 2018 Farm Bill and SB-153, industrial hemp consists of Cannabis sativa cultivars that contain a THC concentration of no more than 0.3%.
Under federal and state law, industrial hemp includes both the living plant and any derivatives thereof, including extracts, the resin extracted from any part of the plant, cannabinoids, isomers, acids, salts, and salts of isomers.
According to California law, growers are required to destroy hemp that contains a THC concentration that exceeds 0.3%,
“A registrant that grows industrial hemp shall destroy the industrial hemp grown upon receipt of a first laboratory test report indicating a percentage concentration of THC that exceeds 1 percent or a second laboratory test report pursuant to paragraph (7) indicating a percentage concentration of THC that exceeds 0.3 percent but is less than 1 percent.”SB-153 Industrial Hemp
So, what happens if hemp or hemp products contain a 0.31% THC concentration? Should hemp that tests marginally higher for THC be destroyed? Are growers required to report beyond a tenth of a percent in the mandatory Pre-Harvest Report? Should Agricultural Commissioners round down, so that 0.399% equals 0.3%? Federal and California state law provide no guidance on these issues.
Wisconsin’s Round Down Policy for THC Concentration Reporting
Unlike California, some states such as Wisconsin have enacted a round down policy for THC Concentration reporting in industrial hemp. Under this approach, any number past 0.3% (e.g., 0.3333%) is automatically rounded down to 0.3%.
“The [Department of Agriculture, Trade and Consumer Protection (ATCP)] will round all test results down to the nearest tenth of a percent for the final determination.”Emergency Rule – § ATCP 22.10 Testing
A Better Regulatory Framework for Industrial Hemp in California
We believe that, like Wisconsin, California should adopt a similar round down policy for THC concentration reporting. Requiring a grower to destroy a crop that he or she has invested significant time and money into merely because it contains one hundredth of a percent of extra THC is absurd. This hard cap of 0.3% THC is especially ruinous for small growers who live harvest to harvest.
In the absence of federal guidance, as representatives of one of the most advanced economies in the world, California legislators have the opportunity to lead the way in crafting a regulatory system that fosters the continued growth of this new industry. Drafting a bill and passing legislation that adopts language similar to Wisconsin’s round down policy would be a good step in that direction.