Signed Bill Brings Michigan Into Compliance With Final Hemp Rule
On March 24, Governor Gretchen Whitmer signed Senate Bill 0816, sponsored by Senator Dan Lauwers (R-Brockway Township), which updates Michigan’s Industrial Hemp Growers Act to ensure the state’s hemp program is in alignment with the U.S. Department of Agriculture’s (USDA) final hemp rule, which went into effect on March 22, 2021.
“Updating our industrial hemp growers act was a critical step in maintaining regulatory certainty for hemp cultivation in Michigan,” said Gary McDowell, director of the Michigan Department of Agriculture and Rural Development. “This helps our hemp growers and processors ensure they’re aligned nationally and signals the importance of supporting this emerging part of our agriculture economy. I appreciate the bi-partisan support and swift movement ensuring Michigan’s legislative framework meets federal requirements.”
Key revisions and updates to the state’s Industrial Hemp Growers Act include the following:
Timing of Sample Collection: The hemp harvest window has increased from 15 to 30 days. Growers are still required to have their hemp sampled prior to harvest; however, they now have 30 days after sample collection to harvest.
Grower Registration Cycle: Based on feedback received from growers, the grower registration cycle has been changed from Dec. 1 – Nov. 30 to Feb. 1 – Jan. 31. This means grower registrations already issued for the 2021 growing season will be valid until Jan. 31, 2022.
Hemp Sampling: USDA modified sampling provisions allowing states to develop performance-based sampling requirements. This added flexibility lets MDARD take into consideration variables such as seed certification, grower compliance, variety performance, etc. when developing its sampling plan. MDARD’s state hemp plan contains several requirements related to sampling and analyzing hemp to ensure compliant THC levels. One requirement is collecting enough hemp during sampling to ensure, at a confidence level of 95%, that no more than 1% of the plants in the sampled lot would exceed the acceptable THC level. Because a variety of factors can influence the THC concentration in a hemp lot, USDA is modifying its sampling provisions to allow states to develop performance-based sampling requirements. This added flexibility will allow MDARD to take into consideration things such as seed certification, grower compliance, variety performance, etc. when developing its sampling plan.
Disposal and Remediation of Non-Compliant Plants: Prior to the final rule, growers were required to dispose of non-compliant hemp using one of several approved agricultural methods. To minimize the financial loss associated with having to dispose of non-compliant hemp, growers may now choose to remediate non-compliant hemp instead of disposing of it. The two options for remediation are:
- Disposal of floral material and salvaging the remainder of the plant
- Blending the entire plant into a biomass-like material.
Under both forms, additional sampling and testing of the post-remediated crop must occur to determine THC levels, and only successfully remediated crops will be allowed to enter the stream of commerce.
Negligent Violations: Negligence is defined as a failure to exercise the level of care a reasonably prudent person would exercise in complying with hemp cultivation requirements. Prior to the final rule, growers with hemp testing above 0.3% but below 0.5% were considered to have grown non-compliant hemp. However, this was not considered to be a negligent violation.
Because compliant hemp can be difficult to grow, the negligence threshold has been raised from 0.5% to 1% and the maximum number of negligent violations a grower can receive in a growing season (a calendar year) has been limited to one. Raising the negligence threshold will facilitate grower compliance as they become more familiar with growing hemp and as the availability of stable hemp genetics improves.
Testing Using DEA-Registered Laboratories: Recognizing laboratories could potentially be handling cannabis exceeding 0.3% THC on a dry weight basis, which is, by definition, marijuana and a Schedule I controlled substance, all laboratories testing industrial hemp must be registered with the United States Drug Enforcement Agency (DEA). This requirement has always applied to MDARD’s Geagley Laboratory, the only Michigan laboratory authorized to test hemp for regulatory compliance. However, it now also applies to any laboratory testing hemp throughout the growing season to monitor THC concentration.
Given the limited number of DEA-registered labs available to growers at this time, enforcement of this requirement will be postponed until December 31, 2022. After this date, growers must ensure the laboratories they utilize for monitoring the THC levels in their hemp during the growing season are DEA-registered.
Additional information about the Michigan industrial hemp program is available at Michigan.gov/IndustrialHemp. To receive email updates from MDARD, which include important program news, including updates on the federal hemp rules, changes to state hemp laws, and regulatory reminders for hemp licensees, click on the red envelope found on the right-hand side of the webpage.
