*David Butter
The commercial hemp industry has suffered growing pains since 2018. Prices for biomass and crude CBD oil were erratic due to a spike in production, farmers struggling to meet federal total THC standards, and underwhelming first-year yields due to harvest challenges.[1] On top of the volatility of a young market and the challenges that come with cultivating hemp, stakeholders are presented with yet another challenge—namely, ensuring they purchase pure genetics.
Production and distribution of high-quality seeds is fundamental to modern agricultural systems. Certified seeds, if available, should be a first choice because certified seeds preserve genetic purity. The genetic purity of seeds (i.e., the percentage of contamination by seeds or genetic material of other varieties or species) contribute to overall seed quality. The genetic purity of seed stocks is important to ensure that growers, processors, and consumers receive the crop varieties and products that they expect.
The Federal Seed Act (“FSA”) requires seeds to meet certain germination rates, purity, and certification standards.[2] The FSA designates member agencies of the Association of Official Seed Certifying Agencies (“AOSCA”) to manage each state’s seed-certification process.[3] Together, the FSA and AOSCA standards provide the framework to create genetically pure seed, then to systematically produce that seed at a reasonable cost.
When the legal cultivation of hemp was introduced under the 2014 Farm Bill, states created their own “certified” seed standards through their departments of agriculture.[4] Their goal was to help farmers identify hemp seed that would work well in their geographic areas. “Certified” to state lawmakers means a seed that will produce a crop with less than 0.3% total THC.[5] Certified under the FSA/AOSCA framework means the seed is a genetically pure seed with a certain varietal identity, not a seed characterized by its total THC percentage.
Despite their well-placed intent, the states’ focus on total THC, rather than the crop’s progeny, misleads purchasers. A farmer could purchase a seed advertised as “certified”—meaning the seed tested at less than 0.3% total THC content—and believe the seed is certified based on its genetic purity. As a result, the farmer could obtain an unworkably contaminated “certified” seed. Certified seed under the FSA/AOSCA framework does not guarantee any specific total THC level in hemp crops grown from that seed. In 2015, AOSCA adopted Industrial Hemp Standards, which do not address total THC content. Total THC testing results during past growing seasons can provide useful information about how a variety may perform in the future—the term “certified hemp seed” should not be used arbitrarily. By law, the term certified seed means seed certified by a seed-certifying agency for the purpose of maintaining genetic purity and identity.[6]
Another problematic trend is when states do not require hemp seed certification. These states include Michigan, California, Oregon, Nevada, Arizona, and Virginia.[7] Without a seed-certification program in place, the market could become flooded with unstable genetics. These standards (or lack thereof) do not support the industry’s long-term economic and agronomic viability. An unregulated seed market stifles industry growth as seasoned farmers will not grow crops with unstable genetics. The inherent risks associated with any new crop can be minimized by making sure seed purchased are certified by an AOSCA seed-certifying agency under the federal framework.
Suitable hemp seed and genetics are of utmost importance to the industry. Buyers of hemp seed must be vigilant in their seed-source selection. Without seed-certification regulations in place, first-time hemp farmers are at greater risk of cultivating noncompliant crops because of the genetic variability of an unproven market. Since the entire hemp-CBD industry is only entering its second year of full legality, industry experts say that hemp-based horticultural practices are still imprecise and largely anecdotal.[8] Instead of corporate seed banks with highly specific varietals, hemp farmers rely on online sellers and word of mouth.[9]
I propose two changes. First, by law, producers should only be allowed to use FSA/AOSCA certified hemp seed.[10] Otherwise, we risk establishing a “buyer beware” market and disrupting the supply chain at its root. Only four states require producers to use FSA/AOSCA certified hemp seed: Kentucky, Montana, North Dakota, and Rhode Island. Second, states that created their own seed-certification standards based on total THC content should consider revising or terminating their programs. With these changes in place, farmers, seed dealers, and subsequent purchasers would know they are obtaining “certified” seed based on genetic purity and varietal identity and not a guaranteed total THC percentage.
These changes still leave unanswered questions. Farmers still want seeds that will produce a crop with less than 0.3% total THC. However, hemp cultivation is so variable based on the crop’s geography. A seed that might produce a compliant crop in one bioregion could produce a noncompliant crop in another. In other words, the same seed used in one state, which produced crops with total THC concentrations less than 0.3%, can produce crops with total THC concentrations of more than 0.3% when cultivated in a different state. It could be viable to have a certification process in place where, under certain conditions and standard operating procedures, a seed could consistently produce a crop with less than 0.3% total THC content. But seed selection and development are so region-specific that setting one national standard for seed certification seems impracticable.
*J.D. Candidate, May 2020, Florida International University College of Law
[1] Hannah Hagemann, Budding Hemp Farmers Struggle to Find Success in the ‘Green Rush’, NPR (Nov. 16, 2019, 7:00 AM), https://www.npr.org/2019/11/16/779758160/budding-hemp-farmers-struggle-to-find-success-in-the-green-rush; Kristine Owram, Hemp Prices Plunge as CBD Demand Falls Short, BNN Bloomberg: Commodities (Jan. 26, 2020), https://www.bnnbloomberg.ca/hemp-prices-plunge-as-cbd-demand-falls-short-cannabis-weekly-1.1379992; Associated Press, Tests Find Some Early Arizona Hemp Crops Contain Too Much THC, FOX10 (Jan. 19, 2020), https://www.fox10phoenix.com/news/tests-find-some-early-arizona-hemp-crops-contain-too-much-thc.amp.
See generally 7 C.F.R. §§ 201.67–.76 (2020).
[3] Creating certified seed is strenuous because it requires three generations of seed with each generation the progeny of the previous. The certification process also involves special land requirements, field inspections, labeling standards, and lab analyses.
[4] Thomas Mitchell, Colorado Introduces First Hemp Seed Approval System in Country, Westword (Mar. 17, 2016, 9:52 AM), https://www.westword.com/news/colorado-introduces-first-hemp-seed-approval-system-in-country-7705699.
[5] Press Release, Colo. Dep’t of Agric., CDA Announces Colorado’s 2018 CDA-Approved Certified Hemp Seed Varieties (Jan. 7, 2019), https://www.colorado.gov/pacific/agmain/news/172019-cda-announces-colorado’s-2018-cda-approved-certified-hemp-seed-varieties; see also 7 U.S.C. § 1639o(1) (2020) (as defined in the 2018 Farm Bill, the term ‘‘hemp’’ means the plant species Cannabis sativa L. and any part of that plant, including its seeds and acids with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis).
[6] 7 C.F.R. § 201.2(ee).
[7] Last month, the Florida legislature almost eliminated its hemp seed certification requirement due to Sen. Bill Monford’s SB 1876.
[8] Zach Harris, Over 40% of Arizona’s Latest Hemp Crop Will Be Destroyed for Having Too Much THC, MERRY JANE (Jan. 22, 2020), https://merryjane.com/news/over-40-of-arizonas-latest-hemp-crop-will-be-destroyed-for-having-too-much-thc.
[9] Id.
[10] See Fla. Stat. § 581.217(6) (2020).