In summary:
Texas House Bill 1325 requires that hemp must be tested “using post-decarboxylation, high-performance liquid chromatography, or another similarly reliable method to determine the delta-9 tetrahydrocannabinol concentration of the sample.” Armstrong routinely determines the concentration of delta-9 THC using liquid chromatography (HPLC-DAD) and gas chromatography (GC-FID) techniques. Both of these analytical techniques are reliable methods for determining the concentrations of THC and other cannabinoids.
THCA and delta-9 THC have the same molecular structure, but THCA contains a carboxyl group (-COOH) that is readily removed upon heating. The removal or elimination of the carboxyl group is called “decarboxylation” and results in the release of carbon dioxide (CO2). For an authoritative definition of “post-decarboxylation”, please refer to the U.S. Department of Agriculture Domestic Hemp Production Program Meaning of terms (7 CFR 990.1):
Post-decarboxylation – “In the context of testing methodologies for THC concentration levels in hemp, means a value determined after the process of decarboxylation that determines the potential total delta-9 tetrahydrocannabinol content derived from the sum of the THC and THCA content and reported on a dry weight basis. The post-decarboxylation value of THC can be calculated by using a chromatograph technique using heat, gas chromatography, through which THCA is converted from its acid form to its neutral form, THC. Thus, this test calculates the total potential THC in a given sample. The post-decarboxylation value of THC can also be calculated by using a liquid chromatograph technique, which keeps the THCA intact. This technique requires the use of the following conversion: [Total THC = (0.877 x THCA) + THC] which calculates the potential total THC in a given sample.”
The evaluation of the concentration of delta-9 THC in Cannabis-related products is based on the total delta-9 THC level, which is the sum of the delta-9 THC and THCA concentrations. Total THC is also defined in the U.S. Department of Agriculture Domestic Hemp Production Program Meaning of terms (7 CFR 990.1):
Total THC – “Total THC is the value determined after the process of decarboxylation, or the application of a conversion factor if the testing methodology does not include decarboxylation, that expresses the potential total delta-9 tetrahydrocannabinol content derived from the sum of the THC and THCA content and reported on a dry weight basis. This post-decarboxylation value of THC can be calculated by using a chromatograph technique using heat, such as gas chromatography, through which THCA is converted from its acid form to its neutral form, THC. Thus, this test calculates the total potential THC in a given sample. The total THC can also be calculated by using a liquid chromatograph technique, which keeps the THCA intact. This technique requires the use of the following conversion: [Total THC = (0.877 x THCA) + THC] which calculates the potential total THC in a given sample.”
Follow the logic. Emphasis added to ease reading.
TEXAS AGRICULTURE CODE
TITLE 5. PRODUCTION, PROCESSING, AND SALE OF HORTICULTURAL PRODUCTS
SUBTITLE F. HEMP
CHAPTER 121. STATE HEMP PRODUCTION PLAN
Sec. 121.001. DEFINITION. In this chapter, “hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant 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.
Added by Acts 2019, 86th Leg., R.S., Ch. 764 (H.B. 1325), Sec. 2, eff. June 10, 2019.
Sec. 121.002. LEGISLATIVE INTENT. It is the intent of the legislature that this state have primary regulatory authority over the production of hemp in this state.
Added by Acts 2019, 86th Leg., R.S., Ch. 764 (H.B. 1325), Sec. 2, eff. June 10, 2019.
Sec. 121.003. STATE PLAN. (a) The department, after consulting with the governor and attorney general, shall develop a state plan to monitor and regulate the production of hemp in this state. The plan must comply with:
(1) 7 U.S.C. Section 1639p;
(2) Chapter 122; and
(3) Chapter 443, Health and Safety Code.
(b) The department shall submit the plan developed under Subsection (a) to the secretary of the United States Department of Agriculture as this state’s plan for monitoring and regulating the production of hemp as provided by 7 U.S.C. Section 1639p.
(c) If a plan submitted under Subsection (b) is disapproved by the secretary of the United States Department of Agriculture, the department, after consulting with the governor and attorney general, shall amend the plan as needed to obtain approval and submit an amended plan.
(d) The department shall, as necessary, seek technical assistance from the secretary of the United States Department of Agriculture and other state agencies in developing the plan under this section.
Added by Acts 2019, 86th Leg., R.S., Ch. 764 (H.B. 1325), Sec. 2, eff. June 10, 2019.
The Texas Agriculture Code Title 5 Subtitle F Chapter 121 Section 121.003 Refers to 7 USC Section 1639p
7 US Code Section § 1639p. State and tribal plans
(a) Submission
(1) In general A State or Indian tribe desiring to have primary regulatory authority over the production of hemp in the State or territory of the Indian tribe shall submit to the Secretary, through the State department of agriculture (in consultation with the Governor and chief law enforcement officer of the State) or the Tribal government, as applicable, a plan under which the State or Indian tribe monitors and regulates that production as described in paragraph (2).
(2) Contents A State or Tribal plan referred to in paragraph (1)—
(A) shall only be required to include—
(i) a practice to maintain relevant information regarding land on which hemp is produced in the State or territory of the Indian tribe, including a legal description of the land, for a period of not less than 3 calendar years;
(ii) a procedure for testing, using post-decarboxylation or other similarly reliable methods, delta-9 tetrahydrocannabinol concentration levels of hemp produced in the State or territory of the Indian tribe;
(iii) a procedure for the effective disposal of—
(I) plants, whether growing or not, that are produced in violation of this subchapter; and
(II) products derived from those plants;
(iv) a procedure to comply with the enforcement procedures under subsection (e);
(v) a procedure for conducting annual inspections of, at a minimum, a random sample of hemp producers to verify that hemp is not produced in violation of this subchapter;
(vi) a procedure for submitting the information described in section 1639q(d)(2) of this title, as applicable, to the Secretary not more than 30 days after the date on which the information is received; and
(vii) a certification that the State or Indian tribe has the resources and personnel to carry out the practices and procedures described in clauses (i) through (vi); and
(B) may include any other practice or procedure established by a State or Indian tribe, as applicable, to the extent that the practice or procedure is consistent with this subchapter.
The Texas Agriculture Code Title 5 Subtitle F Chapter 121 Section 121.003 refers to TAC Chapter 122.
TEXAS AGRICULTURE CODE
TITLE 5. PRODUCTION, PROCESSING, AND SALE OF HORTICULTURAL PRODUCTS
SUBTITLE F. HEMP
CHAPTER 122. CULTIVATION OF HEMP
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 122.001. DEFINITIONS. In this chapter:
(1) “Cultivate” means to plant, irrigate, cultivate, or harvest a hemp plant.
(2) “Governing person” has the meaning assigned by Section 1.002, Business Organizations Code.
(3) “Handle” means to possess or store a hemp plant:
(A) on premises owned, operated, or controlled by a license holder for any period of time; or
(B) in a vehicle for any period of time other than during the actual transport of the plant from a premises owned, operated, or controlled by a license holder to:
(i) a premises owned, operated, or controlled by another license holder; or
(ii) a person licensed under Chapter 443, Health and Safety Code.
(4) “Hemp” has the meaning assigned by Section 121.001.
(5) “Institution of higher education” has the meaning assigned by Section 61.003, Education Code.
(6) “License” means a hemp grower’s license issued under Subchapter C.
(7) “License holder” means an individual or business entity holding a license.
(8) “Nonconsumable hemp product” means a product that contains hemp, other than a consumable hemp product as defined by Section 443.001, Health and Safety Code. The term includes cloth, cordage, fiber, fuel, paint, paper, particleboard, and plastics derived from hemp.
(9) “Plot” means a contiguous area in a field, greenhouse, or indoor growing structure containing the same variety or cultivar of hemp throughout the area.
Added by Acts 2019, 86th Leg., R.S., Ch. 764 (H.B. 1325), Sec. 2, eff. June 10, 2019.
The Texas Agriculture Code Title 5 Subtitle F Chapter 121 Section 121.003 refers to THSC Chapter 443.
TEXAS HEALTH AND SAFETY CODE
TITLE 6. FOOD, DRUGS, ALCOHOL, AND HAZARDOUS SUBSTANCES
SUBTITLE A. FOOD AND DRUG HEALTH REGULATIONS
CHAPTER 443. MANUFACTURE, DISTRIBUTION, AND SALE OF CONSUMABLE
HEMP PRODUCTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 443.001. DEFINITIONS. In this chapter:
(1) “Consumable hemp product” means food, a drug, a device, or a cosmetic, as those terms are defined by Section 431.002, that contains hemp or one or more hemp-derived cannabinoids, including cannabidiol.
(2) “Department” means the Department of State Health Services.
(3) “Establishment” means each location where a person processes hemp or manufactures a consumable hemp product.
(4) “Executive commissioner” means the executive commissioner of the Health and Human Services Commission.
(5) “Hemp” has the meaning assigned by Section 121.001, Agriculture Code.
(6) “License” means a consumable hemp product manufacturer’s license issued under this chapter.
(7) “License holder” means an individual or business entity holding a license.
(8) “Manufacture” has the meaning assigned by Section 431.002.
(9) “Process” means to extract a component of hemp, including cannabidiol or another cannabinoid, that is:
(A) sold as a consumable hemp product;
(B) offered for sale as a consumable hemp product;
(C) incorporated into a consumable hemp product; or
(D) intended to be incorporated into a consumable hemp product.
(10) “QR code” means a quick response machine-readable code that can be read by a camera, consisting of an array of black and white squares used for storing information or directing or leading a user to additional information.
(11) “Smoking” means burning or igniting a substance and inhaling the smoke or heating a substance and inhaling the resulting vapor or aerosol.
Added by Acts 2019, 86th Leg., R.S., Ch. 764 (H.B. 1325), Sec. 7, eff. June 10, 2019.
Sec. 443.002. APPLICABILITY OF OTHER LAW. Except as provided by Section 431.011(c), Chapter 431 applies to a license holder and a consumable hemp product regulated under this chapter.
Added by Acts 2019, 86th Leg., R.S., Ch. 764 (H.B. 1325), Sec. 7, eff. June 10, 2019.
SUBCHAPTER D. TESTING OF CONSUMABLE HEMP PRODUCTS
Sec. 443.151. TESTING REQUIRED. (a) A consumable hemp product must be tested as provided by:
(1) Subsections (b) and (c); or
(2) Subsection (d).
(b) Before a hemp plant is processed or otherwise used in the manufacture of a consumable hemp product, a sample representing the plant must be tested, as required by the executive commissioner, to determine:
(1) the concentration of various cannabinoids; and
(2) the presence or quantity of heavy metals, pesticides, and any other substance prescribed by the department.
(c) Before material extracted from hemp by processing is sold as, offered for sale as, or incorporated into a consumable hemp product, the material must be tested, as required by the executive commissioner, to determine:
(1) the presence of harmful microorganisms; and
(2) the presence or quantity of:
(A) any residual solvents used in processing, if applicable; and
(B) any other substance prescribed by the department.
(d) Except as otherwise provided by Subsection (e), before a consumable hemp product is sold at retail or otherwise introduced into commerce in this state, a sample representing the hemp product must be tested:
(1) by a laboratory that is accredited by an accreditation body in accordance with International Organization for Standardization ISO/IEC 17025 or a comparable or successor standard to determine the delta-9 tetrahydrocannabinol concentration of the product; and
(2) by an appropriate laboratory to determine that the product does not contain a substance described by Subsection (b) or (c) in a quantity prohibited for purposes of those subsections.
(e) A consumable hemp product is not required to be tested under Subsection (d) if each hemp-derived ingredient of the product:
(1) has been tested in accordance with:
(A) Subsections (b) and (c); or
(B) Subsection (d); and
(2) does not have a delta-9 tetrahydrocannabinol concentration of more than 0.3 percent.
Added by Acts 2019, 86th Leg., R.S., Ch. 764 (H.B. 1325), Sec. 7, eff. June 10, 2019.
Sec. 443.152. PROVISIONS RELATED TO TESTING.
(a) A consumable hemp product that has a delta-9 tetrahydrocannabinol concentration of more than 0.3 percent may not be sold at retail or otherwise introduced into commerce in this state.
(b) A person licensed under Chapter 122, Agriculture Code, shall provide to a license holder who is processing hemp harvested by the person or otherwise using that hemp to manufacture a consumable hemp product the results of a test conducted under that chapter, if available, as proof that the delta-9 tetrahydrocannabinol concentration of the hemp does not exceed 0.3 percent, including for purposes of Section 443.151(b)(1).
(c) A license holder shall make available to a seller of a consumable hemp product processed or manufactured by the license holder the results of testing required by Section 443.151. The results may accompany a shipment to the seller or be made available to the seller electronically. If the results are not able to be made available, the seller may have the testing required under Section 443.151 performed on the product and shall make the results available to a consumer.
Added by Acts 2019, 86th Leg., R.S., Ch. 764 (H.B. 1325), Sec. 7,
eff. June 10, 2019.
Bonus Item #1
| Texas Administrative Code |
| TITLE 4 | AGRICULTURE |
| PART 1 | TEXAS DEPARTMENT OF AGRICULTURE |
| CHAPTER 24 | HEMP PROGRAM |
| SUBCHAPTER E | TESTING |
| RULE §24.26 | Methods for Testing |
(a) Laboratories shall use appropriate, validated methods and procedures for all testing activities and evaluate the measurement of uncertainty.(b) At a minimum, analytical testing of samples for delta-9 tetrahydrocannabinol concentration levels must use post-decarboxylation or other similarly reliable methods approved by the Department.(c) The testing methodology must consider the potential conversion of delta-9 tetrahydrocannabinolic acid (THCA) in hemp into delta-9 tetrahydrocannabinol (THC) and the test result reflect the total available THC derived from the sum of the THC and THC-A content. Testing methodologies meeting these requirements include, but are not limited to, gas or liquid chromatography with detection.(d) Alternative testing protocols will be considered by the Department if they are comparable and similarly reliable to the baseline established under the Department program. Alternative testing protocols must be requested of the Department in writing and approved in writing by the Department, provided they meet the requirements of this subchapter. |
| Source Note: The provisions of this §24.26 adopted to be effective March 11, 2020, 45 TexReg 1655 |
Bonus Item #2
US CODE
PART 990—DOMESTIC HEMP PRODUCTION PROGRAM
Authority:7 U.S.C. 1639o note, 1639p, 1639q, 1639r.
Source:86 FR 5680, Jan. 19, 2021, unless otherwise noted.
Subpart A—Definitions
§ 990.1 Meaning of terms.
Words used in this subpart in the singular form shall be deemed to impart the plural, and vice versa, as the case may demand. For the purposes of provisions and regulations of this part, unless the context otherwise requires, the following terms shall be construed, respectively, to mean:
Acceptable hemp THC level. When a laboratory tests a sample, it must report the total delta-9 tetrahydrocannabinol content concentration level on a dry weight basis and the measurement of uncertainty. The acceptable hemp THC level for the purpose of compliance with the requirements of State or Tribal hemp plans or the USDA hemp plan is when the application of the measurement of uncertainty to the reported total delta-9 tetrahydrocannabinol content concentration level on a dry weight basis produces a distribution or range that includes 0.3 percent or less.
For example, if the reported total delta-9 tetrahydrocannabinol content concentration level on a dry weight basis is 0.35 percent and the measurement of uncertainty is ±0.06 percent, the measured total delta-9 tetrahydrocannabinol content concentration level on a dry weight basis for this sample ranges from 0.29 percent to 0.41 percent. Because 0.3 percent is within the distribution or range, the sample is within the acceptable hemp THC level for the purpose of plan compliance. This definition of “acceptable hemp THC level” affects neither the statutory definition of hemp, 7 U.S.C. 1639o(1), in the 2018 Farm Bill nor the definition of “marihuana,” 21 U.S.C. 802(16), in the CSA.
Bonus Item #3
| Texas Administrative Code |
| TITLE 4 | AGRICULTURE |
| PART 1 | TEXAS DEPARTMENT OF AGRICULTURE |
| CHAPTER 24 | HEMP PROGRAM |
| SUBCHAPTER E | TESTING |
| RULE §24.28 | Reporting Test Results |
| (a) The laboratory shall send the test results electronically to the Department and license holder no later than the fourteenth (14th) business day from the sample collection date.
(b) The total delta-9 tetrahydrocannabinol concentration level shall be determined and reported on a dry weight basis. Additionally, measurement of uncertainty (MU) must be estimated and reported with the test results. (c) Any sample test result showing with at least 95% confidence that the THC content of the sample exceeds the acceptable hemp THC level shall be conclusive evidence that one or more cannabis plants or plant products from the lot represented by the sample contain a THC concentration in excess of that allowed. If the results of a test conclude that the THC levels of a sample conclusively exceeds the acceptable hemp THC level, the laboratory will promptly notify the producer and the Department or its authorized agent. |
| Source Note: The provisions of this §24.28 adopted to be effective March 11, 2020, 45 TexReg 1655 |