Changes Coming: Wisconsin’s Hemp Pilot Program Transitions to Comply with the 2018 Farm Bill on October 31, 2020.

All good things must come to an end. On October 31, 2020 Wisconsin’s Hemp Pilot program that was ushered in by the 2014 Farm Bill will be replaced with a permanent program that complies the 2018 Farm Bill and Wisconsin Act 68. The program was supposed to sunset sooner, but as with many things these days – replacement and implementation was delayed.

In the meantime, Wisconsin DATCP has implemented an emergency rule that makes significant changes to the regulations that underpin the pilot program. Operationally, not much will change for hemp growers and processors this year, but the emergency rule gives us a great (and easy to understand) insight into some of the most significant changes that will start in crop year 2021.

The Emergency Rule

The Emergency Rule came into effect on June 27, 2020 and made the following changes to the current state of affairs:

  • Updates the definition of hemp.
  • Adds definitions for the terms “THC” and “decarboxylated” to clearly state regulatory testing requirements and to provide additional clarity that THC content includes THC-A, consistent with state and federal law, and existing testing requirements.
  • Uses the term “lot” instead of “crop” to more clearly explain how regulatory sampling and testing requirements apply to all hemp.
  • Uses the term “growing location” instead of “field” and “greenhouse” to refer to where hemp is grown.
  • Clarifies that after a failed initial test, the entire lot must be destroyed within 10 days after service of DATCP’s destruction order unless the grower requests a re-test prior to the expiration of the 10 days.
  • Clarifies that a grower cannot request re-test of the original sample, but that a grower can request a new sample be collected for re-testing by DATCP.
  • Clarifies that a lot must be sampled prior to harvest, but that a lot does not need to be tested prior to harvest.
  • Clarifies that a fit for commerce certificate must be obtained by a grower prior to the hemp being transported from the growing location. Allows for movement of harvested hemp within, but not from, a growing location.
  • Clarifies that hemp found without a required fit for commerce certificate is subject to destruction.
  • Clarifies that a grower with unpaid invoices may not annually register and may be subject to license suspension.
  • Updates requirements for the planting report and final report to meet current program practices.
  • Updates requirements that a licensee must notify DATCP in writing of the variety of hemp they intend to plant before planting. Licensees may plant only approved varieties.
  • Updates the dates and deadlines for transitioning to a new hemp program under the U.S. Department of Agriculture (USDA).

A full chart of all the changes is available here: https://datcp.wi.gov/Documents/HempER2016Table.pdf.

What does this mean for growers and processors? Operationally, not that much. Crop year 2020 will continue without much interruption – but note that fit for commerce certificates continue to be very important and some changes have already been pushed out to the Planting Reports that growers are required to submit (updated form here: https://datcp.wi.gov/Documents/HempPlantingReport.pdf).

What’s Next?

Wisconsin will transition to the permanent program on October 31, 2020 and DATCP will promulgate new information, updated forms, and the like sometime after that date. For updates, you can bookmark this page or sign up for e-mail updates. Additionally, Wisconsin Act 68 is available in all its glory right here, if you’re looking for an excuse to take a break from work.

The change I’m keeping an eye on is here:

Section 23 . 94.55 (2) (b) 4m. of the statutes is created to read: 94.55 (2) (b) 4m. When sampling and testing a crop of hemp, the department is not required to sample and test every growing location or every strain. The department may not require the sampling and testing of hemp seedlings or clones that are intended to be planted and that originated from hemp seed certified under par. (c) or from hemp seed or clones approved for growing under par. (f).”

Certified Seed under the Pilot Program provided a liability shield if the plants tested with a prohibited amount of THC. Testing however, still occurred – certified or not. Does this change mean that DATCP will not test plants grown from certified seed? (“Intended to be planted” will be the key phrase.) The final rule is not implemented yet – so that remains to be seen. That said, during a past question and answer session with DACTP – a variant of this question was asked – “If I have certified seed – do I still need to have my crop tested?” The answer DATCP gave was “Yes” – with the logic behind the answer being essentially, “nature” or “not all plants grown from certified seed are guaranteed to be the same” – i.e. produce an acceptable amount of THC.

Again, this is just an interesting tidbit from the Act that will underpin Wisconsin’s permanent program – but it seems that growing from certified seed may have additional operational benefits – not just safety from prosecution.

If you have questions or want to talk nerdy about Wisconsin Act 68 – you know where to find us! Thanks for reading.

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