Hemp is often known for being the part of the cannabis plant that doesn’t get people high.
It’s full of CBD, a nonpyschoactive cannabinoid that helps people relax and often found in massage oils and sleep aids.
But much has changed since hemp was taken off the controlled substance list in 2018 by the last U.S. Agriculture Improvement Act, more commonly known as the farm bill.
Now state regulators can barely keep up with the constantly evolving ways that people have found to make intoxicating products from hemp. The market for things like Delta-8 drinks and edibles is one of the fastest growing markets in the country.
In Missouri, the issue has taken center stage in a massive cannabis recall, where a company is accused of illegally importing marijuana but insists it actually brought legal, unregulated hemp into the state.
With the farm bill up for renewal, the debate on whether some hemp products need to be considered controlled substances is back on the table — though delays make it unclear if any changes will occur at all.
Hemp industry leaders, state marijuana regulators and members of Congress all seem to agree on one thing — the U.S. Food and Drug Administration should regulate CBD. But the divides come with intoxicating hemp products, and the standoff is over criminalization and prohibition.
Hemp industry leaders don’t want to see these intoxicating products banned and have suggested the Alcohol and Tobacco Tax and Trade Bureau handle their regulation.
But state regulators believe Congress should “set the floor not the ceiling” on creating standards of hemp products.
“…states should be able to enact regulations that extend beyond federal minimums to further protect their communities and consumers,” said leaders of the Cannabis Regulator Association (CANNRA) in a statement provided to Congress.
When the current farm bill passes, it will likely have guidance for the FDA to monitor the production and testing of CBD.
But it won’t likely have anything to help states regulate intoxicating hemp products, said Jonathan Miller, general counsel for the U.S. Hemp Roundtable, a coalition of hemp industry leaders across the country.
“My guess is that the farm bill will not resolve that,” Miller said, “and that will be something that will be continued to be studied and handled in the states.”
Hemp industry leaders in Missouri have pushed back regulation coming under the Department of Health and Senior Services, the agency that oversees the cannabis program. The Missouri Hemp Trade Association told Congress that it would like a separate “regulatory regime” that would allow for the use of intoxicating hemp products while providing for consumer safety and product testing.
“This approach has avoided the massive bureaucratic costs of enforcing outright prohibition, criminalizing and incarcerating responsible, law-abiding adults, and forcing consumers away from alternatives to opiates and other deadly drugs,” the association stated in a Congressional Request for Information on cannabinoid hemp regulation from the U.S. House Committee on Energy & Commerce and the U.S. Senate Committee on Health, Education, Labor, and Pensions.
Small piece of the farm bill
The previous farm bill expired Sept. 30. Its renewal, a process that occurs every five years, remains in the drafting stage.
The expansive agricultural and food policy bill covers farmer safety net programs, conservation and sustainability incentives, international trade, rural area development, and food and nutrition programs for low-income Americans — the last of which by far accounts for the largest portion of the bill.
A very small piece of the bill would be the hemp provisions.
“We’re one of the very rare industries out there that is asking Congress to regulate it,” Miller said.
In its response to Congress, CANNRA suggested closing “loopholes” that have allowed for intoxicating hemp products to go unregulated, including the “0.3% loophole” and the “THCA loophole.”
Delta-9 THC is the most common form of intoxicating cannabinoid. While the threshold of 0.3% delta-9 THC by weight is a small amount of THC in a hemp plant, when applied to things like chocolate bars or beverages that can weigh significantly more, 0.3% by weight can amount to hundreds of milligrams of THC.
For example, a 50-gram chocolate bar at 0.3% THC would have around 150 mg of THC — 30 times the standard 5 mg THC dose established by the National Institute on Drug Abuse. A family sized pack of cookies weighing 20 oz can contain around 1,700 mg of THC using the 0.3% THC threshold.
Instead, Miller and other hemp leaders suggest setting the intoxicating floor at 5 mg.
Others believe it should be 2.5 mg.
Missouri is currently shining a light on the THCA loophole. After more than 60,000 cannabis products were recalled in August, a company has revealed that it was importing THCA extracted from the hemp plant and putting it in marijuana products — arguing that THCA is not actually intoxicating until it is heated, so it doesn’t count as total THC.
CANNRA told Congress that despite some states’ efforts to address this issue, many hemp businesses are selling “THCA hemp” flower that contains less than 0.3% delta-9 THC but has a total THC concentration of 15% to 20%.
“This so-called ‘hemp’ is indistinguishable from marijuana flower,” the association stated.
Patchwork of state laws
Right now states have passed a “patchwork of different laws,” including some that are being challenged in courts, Miller said.
Miller is hoping that the current legal conflicts between recent court decisions and the DEA will push Congress to act.
On Sept. 8, a federal judge in Arkansas granted a preliminary injunction in a lawsuit against the state, saying that hemp-derived cannabinoids, like THCA, are protected under the 2018 farm bill.
But a few months before that, the U.S. Drug Enforcement Administration reaffirmed its position that all these cannabinoids are illegal under federal law and not protected by the farm bill.
The federal judge indicated that Congress should be the one to decide how to regulate hemp-derived THC products.
“If we don’t change the definition and the federal court in Arkansas is correct, then maybe you can’t put limits on these products other than .3% Delta-9 THC,” Miller said. “It’s possible that if there’s no action at the federal level that courts could say, ‘We are kind of in the wild west without federal action.’”
