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DEA filed a motion to dismiss today in the Sabhie Khan vs Allen TX case
The State of Texas created a plan for the regulation of hemp production that complied with the Agriculture Improvement Act of 2018 (“2018 Farm Bill”)4 requiring testing that accounts for conversion of THCA into THC. In the 2018 Farm Bill, Congress mandated that any state plan for the regulation of hemp products include “a procedure for testing, using postdecarboxylation or other similarly reliable methods, delta-9 tetrahydrocannabinol concentration levels of hemp produced in the State.” 7 U.S.C. § 1639p(a)(2)(A)(ii) (emphasis added); see also 7 U.S.C. § 1639q(a)(2)(B) (requiring same for federal testing).
To give effect to that congressional directive, the U.S. Department of Agriculture (USDA) has required by regulation that any analytical testing of hemp samples by a state “must consider the potential conversion of THCA in hemp into THC and the test result must report the total available THC derived from the sum of the THC and THCA content.” 7 C.F.R. § 990.3(a)(3); see also 7 C.F.R. § 990.25(g) (requiring same for federal testing). Notably, USDA
has further clarified that even if a non-decarboxylating testing method is used, such as liquid chromatography (the method Plaintiffs advocate for), a conversion formula must be applied in order to approximate how much of the THCA would have been converted into THC if a decarboxylating method had been used. 7 C.F.R. § 990.1 (defining “total THC”).
As Plaintiffs’ point out, the testing used in this case, gas chromatography, does account for the measurement of the total THC concentration level including the potential of converting THCA into THC. See, Dkt 2, p.26 ¶46. That is exactly as Congress intended THC testing to be conducted, and that is the methodology that has been necessarily prescribed by regulations of the USDA. Far from violating any cognizable rights of the Plaintiffs, the testing employed in this case precisely followed the methodology that is mandated by federal law and cannot give rise to any claim for relief.