A state worker trims a hemp plant for testing in 2018. Crops that exceed a THC level of .3 percent must be destroyed, potentially costing farmers thousands.
Lisa and Josh want to be part of the revival of family farms in Wisconsin. That’s why, this year, they decided to plant hemp in northwestern Wisconsin to produce CBD. With the help of their four kids, the couple hand-dug holes for around 70 hemp plants with seeds certified with the state. They manually pulled weeds and carefully tended to each plant for months. Lisa put her career as a business consultant and educator on hold to work full-time in the field.
“This was truly an endeavor by our entire family. It was our first time farming but we did our homework. We invested a lot of time and money to do everything by the book,” says Lisa, who didn’t want to give her last name. “We took this on to help Wisconsin make hemp successful in this state.”
But Lisa and Josh are looking at a complete loss this season — about $40,000, not including all their time and effort. The Wisconsin Department of Agriculture and Consumer Protection (DATCP), in accordance with federal law, requires hemp farmers’ crops to pass a test ensuring THC — the compound in marijuana that gets you high — is under .3 percent. Lisa and Josh’s crop tested at .5 percent — which in the industry is known as coming in “hot.” As a result, DATCP ordered the couple to destroy it.
“This isn’t just affecting us — it’s a drain on the entire Wisconsin economy. We are a very small operation. The cost statewide must be in the millions,” says Lisa. “We’re not looking to get people high. If we wanted to grow marijuana, we would be farming in a different state. We want to be hemp farmers and produce a quality CBD product to improve people’s health.”
Lisa and Josh question the validity of the DATCP test, say the agency took too long to get to their field and to provide test results, and feel they aren’t being offered any effective recourse to dispute results. They aren’t alone.
Isthmus spoke with several industry experts and 25 hemp growers this past week — many who also had a “hot crop.” Even farmers who received a “fit-for-commerce” result and had a good experience with DATCP say the agency seems overwhelmed. Rob Richard, a former Wisconsin Farm Bureau Federation employee, says the state’s hemp law, which he helped write, was intended to be a pilot program.
“We thought 20 or 30 farmers would sign up,” says Richard. “We blew the doors off this and hemp is growing faster than we ever imagined. Nobody saw this coming.”
It’s only the second season hemp farming has been legal in the state. In 2018, DATCP spokesperson Donna Gilson says Wisconsin had 135 registered growers. This year the number soared to 1,247. DATCP estimates that 10 to 12 percent of hemp field samples have failed so far — same as last year. If the numbers hold true, hundreds of growers could be affected. Dozens have already received the bad news that their hemp is too hot and must be destroyed.
Gilson says it has met its obligation to farmers.
“There was always a chance their crop could come in hot and we tried to be clear about that,” says Gilson. “You also had a lot of people where this was their first experience farming any crop. Hemp has a really steep learning curve and we were very upfront about the risks.”
Several growers told Isthmus they feel burned by DATCP for not being clear about the inspection timeline and being unresponsive to questions.
Under DATCP guidelines, farmers are required to give a 30-day notice of “when they intend to harvest.” The agency says on its website that it will be in touch within two weeks of notification to set up an inspection and that farmers will receive test results “about three weeks” from the date of sampling. Growers have 10 days after receiving results to harvest or destroy the crop. If an inspector comes three or four weeks after notification, growers must decide whether to do a laborious harvest without knowing if the crop is worthless.
The longer a hemp crop is in the ground, the more likely its THC levels will jump the legal limit. Sometimes the level can spike in just days. So it can make a big difference if an inspector arrives 15 days after notification or 29 days. Those who tested just slightly over the THC limit are left to wonder if DATCP had tested just a few days earlier, would they be out tens of thousands of dollars this year?
Most growers contacted by Isthmus assumed DATCP would arrive sooner than it did. The agency had just 18 inspectors to collect more than 2,000 samples within a matter of weeks.
“Was that enough inspectors? We got everything done. It’s what we had money for,” says DATCP’s Gilson. “In nearly every instance, we have gotten out there within the 30 days. There were a couple exceptions…. If you gave us a 30-day notice but you misjudged, or conditions changed, what can we do about that?”
Hemp and marijuana are the same plant: cannabis. According to the federal standard, a cannabis plant with less than .3 percent THC is hemp; anything over .3 is marijuana and illegal in Wisconsin. Hemp can be grown for fiber or cultivated to produce CBD compounds, which are purported to offer a wide array of health benefits. The vast majority of Wisconsin farmers are growing hemp for CBD, a product that has exploded since a 2014 federal law cleared the way for its cultivation. The 2018 Farm Bill requires states to test for THC in hemp but it doesn’t prescribe when or how to do it.
There are hundreds of cannabis strains, each with unique levels of CBD and THC. DATCP lists 155 varieties — with playful names like Afternoon Delight, Invictus, Stormy Daniels, and several varieties named for President Trump — that have traditionally been high in CBD but not THC. DATCP offered no guarantee these varieties wouldn’t be hot, although if farmers used the approved list, they were protected from criminal prosecution.
Phillip Scott, president of the Wisconsin Hemp Farmers and Manufacturers Association, says there are several factors that determine CBD and THC levels.
“The plant will create CBD [and other compounds] but towards the end of its life — the collision point — THC will increase. The plant is doing this to defend itself against mold, pests and to fight the winter,” says Scott. “The genetics, the weather, the wind, the soil, the climate, the nutrients you add — it all causes THC levels to fluctuate. It’s complicated.”
The THC compound that gets someone high doesn’t generally have any psychoactive effect until it reaches about 1 percent concentration. But that level isn’t potent. For comparison, marijuana in the 1970s had a THC potency of about 5 percent. Today in legal weed states, THC potency can hit 30 percent. All the hot crops belonging to farmers Isthmus spoke to measured below 1 percent.
Farmers say the state test doesn’t keep hot hemp out of the market, either, since THC levels can spike after a crop is tested. Plus, THC levels don’t matter for the CBD oil market. Processors don’t want it in their products and can dilute or extract it. A hot crop can be used to produce lawful CBD products and might even yield a higher CBD potency coveted by buyers. CBD processors and retailers typically test for THC with private labs, which is not required by law, so they don’t unwittingly turn themselves and customers into criminals.
Alan Robinson, executive director of the Wisconsin chapter of NORML and a partner with Badgerland Bud Wisconsin farm, provided documentation to Isthmus that shows his farm gave DATCP a 30-day notice on Aug. 6. His two fields weren’t tested until Sept. 13. On Oct. 2, Badgerland was notified that its plants were hot and needed to be destroyed.
“We started getting worried in late August and called DATCP, seriously, every day. Just kept leaving messages that were not responded to,” says Robinson. “They knew they didn’t have enough inspectors to go all around the state months ago. But we’re the ones who have to pay.”
Jessica, who doesn’t want her real name used because she fears retribution from DATCP, doesn’t think her THC test was accurate. She paid a private laboratory to test her crop several days after the state inspector came and results came back with .05 percent THC — well within the legal limit. But weeks later, the state reported that her field tested at .5 percent. She showed both tests to Isthmus.
“I honestly think it’s a typo,” says Jessica. “This has already caused so much stress. I’m not sure what to do.”
Three farmers told Isthmus that DATCP inspectors used shears for cutting plants that left their crops with a disease that spread down the plant. One grower kept contacting DATCP for weeks with no response before learning the agency had sent her results to the wrong address.
Tim Mullen, a hemp grower in Waupaca, had an inspector contact him three weeks after he gave his 30-day notice on Aug. 20. The inspector was booked for over a week and couldn’t test Mullen’s field until after the farmer’s harvest date. Mullen is still waiting for results.
“From all I’m hearing from other growers, I’m very concerned that my crops will come back hot because DATCP took so long,” says Mullen. “Right now, I’m just harvesting and hoping for the best. It’s not good to write a complaint letter while you’re angry. So I think I’ll wait until winter to contact the state.”
A “Hemp 2.0” bill is currently making its way through the Wisconsin Legislature. Richard says it would address many of the hiccups discovered in the state’s first two hemp seasons. He says the bill allows third-party testers, which would take some pressure off of DATCP. The bill would also provide a process for farmers to reduce THC potency for hemp that comes in hot.
“I think we already have one of the most progressive, grower-friendly hemp bills in the country,” says Richard. “There’s no doubt that DATCP didn’t have enough resources this season and did its best. There’s going to be a lot of growing pains unfortunately.”
But the bill won’t be any to help farmers this year.
Lisa and Josh plan to grow hemp again next season. They hope the state is more supportive of family farmers as the emerging Wisconsin hemp industry takes shape.
“It’s been a tough year for farmers generally. The state saw the opportunity for hemp to bring Wisconsin agriculture back to the level that it ought to be and always was,” says Josh. “I love that idea. I think a lot of Wisconsinites can get behind that. The state needs to start pulling its weight.”
