Hot Hemp

What is Hot Hemp?

 To be legal, your hemp has to test at or below 0.3% THC.  So what if your hemp crop comes in over the limit?  Now you’ve got “hot hemp”. Which means you just grew a field of illegal marijuana.  Why did this happen?  What can you do about it?

Why does your hemp have too much THC?

 As you probably know, hemp is simply a variant of Cannabis that produces a minimal amount of the cannabinoid THC.  The government has drawn the line at 0.3% to distinguish between industrial hemp and marijuana used for medicine and recreation.

 Cannabinoid production is largely an expression of genetics, but environment can play a role as well.  So, your hemp might be hot because the seeds you used were not properly bred, or not stable.  However, various environmental factors can also affect THC production, including drought, flooding, nutrition, heat, cold, light, etc.  Have your hemp seeds been tested in your region?

 Massachusetts Department of Agricultural Resources (MDAR) requires licensed hemp growers to only acquire seeds from an “approved distributor”, but this policy cannot be relied upon to ensure that your finished hemp flower won’t exceed the limit.

 How common is hot hemp?  If we look to Colorado, we see that in that state’s first hemp season, about 40% of the crops failed due to THC levels.  But by 2017, only about 8% of the crops had problems.  The Colorado Department of Agriculture now approves certified hemp seeds, and other regulatory mechanisms exist to assist farmers in producing compliant crops.  Similarly, in 2017, North Carolina hemp was testing hot in about 10% of samples.  But states new to the hemp game may have more problems.  For instance, in 2019, Hawaii saw over half of it’s hemp crops destroyed due to high THC levels.

 Testing Hemp in Massachusetts

 MDAR will conduct routine, scheduled, sampling prior to harvest, as well as record inspections to ensure the grower is keeping records and documentation.  MDAR will also conduct “followup inspections” which may be unannounced and can be for almost any purpose, including testing the crop.

 The grower must give MDAR 14 days notice of an impending harvest.  MDAR will come take samples of the hemp for testing.  Harvest must be conducted within 10 days of the sampling.  If the THC tests at no more than 0.3%, then the crop will be certified and can be moved off the site for processing or sale.

 If the hemp tests hot, then the crop is no longer hemp and is now illegal marijuana, which means it cannot be harvested or sold, and must be destroyed.  The grower potentially faces civil and/or criminal penalties.

 What to do if your hemp tests over the THC limit?

  •  Retest

    • It’s worth the cost.

  • Retest again

    • In Massachusetts, it’s three strikes and you’re out.  If the third test comes back hot, you must destroy the crop.

  • Call your attorney

    • MDAR enforcement actions may be appealed under MGL c. 128 section 123.

  • Look to your contract with the seed supplier

    • Hopefully you have a contract; if not, call your attorney

    • Is there a clause that determines what will happen if the crop exceeds the THC limit?

    • Did the seed vendor make any guarantees regarding THC?

    • Does the contract determine damages if the crop must be destroyed?

  • Assess what went wrong and determine whether to find a different seed source

  • Cooperate with the regulators in order to keep your hemp license and avoid fines

 What can you do before the next growing season?

  •  Vet your seed source

  • Preserve documentation from the seed source

  • Get a written contract that has a clause describing what will happen if the hemp tests hot

  • Talk with your insurance provider

    • At this time, it appears that crop insurance will not cover variable THC levels

  • Assess your business plan’s capacity to absorb the loss of a high-THC crop