N.Y. Comp. Codes R. & Regs. tit. 1 § 159.11

Current through Register Vol. 46, No. 50, December 11, 2024

Section 159.11 - Regulatory THC testing

(a) Testing Laboratories.

(i) The Department, in its discretion, may conduct its regulatory testing at the Department's Food Laboratory or may authorize testing for the acceptable hemp THC level to be conducted, at the grower's expense, at a laboratory approved by the Department.

(ii) Growers shall be required to pay a fee equal to the actual cost of performing the laboratory analysis for each sample tested by the Department for THC.

(iii) After December 31, 2022, or a later date established by the USDA, testing for acceptable THC levels of pre-harvest samples shall be conducted only at laboratories registered with the United States Drug Enforcement Administration.

(iv) The Department shall provide a list of laboratories approved for testing.

(v) Private laboratories performing regulatory testing shall deliver their testing reports to the Department, the USDA, and the grower at the same time.

(b) Testing Standards.

(i) Analytical testing for detecting the concentration level of THC in the sampled material shall meet the following standards:

(1) Laboratory quality assurance must ensure the validity and reliability of test results;

(2) Analytical method selection, validation and verification must ensure that the testing method used is appropriate and that the laboratory can successfully perform the testing; and

(3) The demonstration of testing validity must ensure consistent accurate analytical performance. Testing method performance specifications must ensure analytical tests are sufficiently sensitive for the purposes of the detectability requirements of this Part.

(ii) Analytical testing of samples for THC must use post-decarboxylation or other similarly reliable methods approved by the Commissioner. The testing methodology must consider the potential conversion of THCA in hemp into THC, and the test result must measure the total available THC derived from the sum of the THC and the THCA content. Testing methodologies meeting this requirement include, but are not limited to, gas or liquid chromatography with detection.

(iii) The total THC concentration level shall be determined and reported on a dry weight basis, unless the Department determines that some other method is more appropriate or accurate for the substance tested.

(iv) With each test result, a measurement of uncertainty (MU) must be estimated and reported with the test results. Laboratories shall use appropriate, validated methods and procedures for all testing activities and evaluate measurement of uncertainty.

(c) Test results.

(i) Any sample test result exceeding the acceptable hemp THC level shall establish a prima facie case that the lot represented by the sample is not in compliance with this Part.

(ii) Lots meeting the acceptable hemp THC level may enter the stream of commerce.

(iii) Lots tested and determined to exceed the acceptable hemp THC level may not enter the stream of commerce unless remediated in a manner consistent with Section 159.12(b) of this Part. For lots testing above the acceptable hemp THC level and not remediated, the grower shall ensure that the lot is disposed of in a manner consistent with Section 159.12(a) of this Part.

(iv) Remediated crops must be retested to ensure compliance with the acceptable THC levels. Retested remediated samples that exceed the acceptable hemp THC level must be disposed of in a manner consistent with Section 159.12(a) of this Part.

(v) Any grower may request additional testing of the original sample, at the grower's expense, if the grower has a good faith belief that the original THC concentration level reported in the regulatory testing results is in error.

(d) The Department may provide notice of non-compliance to appropriate law enforcement agencies.

N.Y. Comp. Codes R. & Regs. Tit. 1 § 159.11

Adopted New York State Register April 6, 2022/Volume XLIV, Issue 14, eff. 4/6/2022