The Complexities Of USDA Organic Certification

This submission is intended to elaborate upon the fine article recently posted by Grant Taylor for Heady Vermont. 

I could go on at length regarding the confusing rules and regulations surrounding hemp cultivation and its distant and recent history, but for the sake of the Reader, I will be as clear and direct as possible. 

There is only one possible way to obtain legitimate USDA Organic certification for Vermont-grown hemp. And it is such a challenging approach that I do not recommend it to anyone. More on that below. 

The problem here is that the 2018 Farm Bill did not take effect until after the 2019 growing season when the Interim Final Rules were published by the USDA.

In 2020, Vermont-grown hemp is not eligible for USDA Organic certification. Technically, the 2019 Vermont-grown hemp crop also was not eligible. And (apologies in advance for the likely confusing background), here is why. 

In 2014, the US Farm Bill, Section 7606 was signed into Federal law. Section 7606 explicitly stated the following: 

“The term “industrial hemp” includes the plant Cannabis sativa L. and any part or derivative of such plant, including seeds of such plant, whether growing or not, that is used exclusively for industrial purposes (fiber and seed) with a tetrahydrocannabinols concentration of not more than 0.3 percent on a dry weight basis.”

In 2018, the superceding US Farm Bill adjusted the definition of hemp as such: 

‘‘(1) HEMP.—The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis. “

What changed? In the 2014 Farm Bill, ‘hemp’ is defined as fiber and grain ONLY. In the 2018 Farm Bill, ‘hemp’ is defined as including ‘derivatives, extracts, cannabinoids, isomers, acids, salts and salts of isomers’ (read: CBD, CBG, etc). 

The problem here is that the 2018 Farm Bill did not take effect until after the 2019 growing season when the Interim Final Rules were published by the USDA. That means that Vermont was acting under the 2014 Farm Bill and its exclusive ‘fiber and seed’ definition (NOT for flowers and CBD, CBG, etc as described by the 2018 Farm Bill). 

Confused? That isn’t surprising. I’ve been studying this and consulting on the subject matter for 6 years and still have to go back to make sure that I have it right. It also gives some understanding as to why the State of Vermont and NOFA-VT might be somewhat confused. Having consulted for both organizations in the past, I am confident that their hearts are in the right places. Even if their policies are muddled. 

Vermont has elected to remain on the 2014 Farm Bill for 2020. Which means that the flower, CBD, CBG, etc is not recognized as legal hemp under Federal regulations. 

So what of 2020? Can your hemp crop be legitimately certified Organic in Vermont? The answer is: No. And the reason is also somewhat confusing. 

When the USDA issued the Interim Final Rules (IFR), they became in effect immediately. The IFR created the USDA playbook for implementation of the 2018 Farm Bill at the State-level. States must develop a permitting and oversight schema that is in alignment with the IFR, or they will not be Federally-compliant. 

No IFR-compliance = no Farm Bill-compliance = hemp is Federally illegal = why are hemp-growers being expected to pay for a permit that does not grant them any protection from the USDA or DEA or criminal interdiction or allow them to sell their products legally? 

This is convoluted, for certain, but it begs the very question of the value of USDA Organic label if the regulations are not meticulously observed. 

The IFR gives States a choice for 2020: Get a 2018-compliant program in place and approved by the USDA; or rely upon the 2014 Farm Bill, Section 7606 for one last year. Remember that the 2014 Farm Bill does not allow for flower, CBD, CBG, etc. Vermont has elected to remain on the 2014 Farm Bill for 2020. Which means that the flower, CBD, CBG, etc is not recognized as legal hemp under Federal regulations. 

I thought that this was about USDA Organic certification, but here is where it comes together. The USDA Organic label is provided for under the USDA National Organic Program (NOP). The NOP must follow the USDA regulatory schema. If the USDA regulatory schema says flower, CBD, CBG, etc is part of the definition of hemp as it does in the 2018 Farm Bill, no problem!

BUT, if the USDA regulatory schema excludes flower, CBD, CBG, etc from the definition as it does in the 2014 Farm Bill, then the NOP cannot be legitimately or legally applied and USDA Organic is not available. 

Policy

For hemp produced in the United States, “only hemp produced in accordance with the U.S. Domestic Hemp Production Program and/or the 2014 Farm Bill may be certified as organic, if produced in accordance with USDA organic regulations.”

Note that the use of ‘and/or’ with regards to the 2014 Farm Bill. The ‘or’ signifies that the definitions of the 2014 Farm Bill, Section 7606 are critical and that flower, CBD, CBG, etc are excluded from USDA Organic certification. 

This is convoluted, for certain, but it begs the very question of the value of USDA Organic label if the regulations are not meticulously observed. 

Joel T. Bedard is a Cannabis subject matter expert with 30+yrs of cultivation and advocacy and 7yrs in the hemp narrative. He has presented at numerous conferences, summits, and symposiums, and continues to provide expertise to numerous business, government and academic partners across the nation.