A marijuana trade group is urging the U.S. Congress to regulate intoxicating hemp compounds separately from non-psychoactive seed- and fiber-derived byproducts, calling for a more restrictive definition of industrial hemp in the next Farm Bill.
The U.S. Cannabis Council (USCC) wants lawmakers to prohibit hemp products intended for human or animal consumption that contain “detectable quantities of total THC,” suggesting “products containing intoxicants which are derived from the Cannabis sativa L. plant cannot be defined as ‘hemp’” in the Farm Bill currently being drafted.
The next Farm Bill – originally the 2023 Farm Bill but which has been repeatedly pushed back and may not be ready until 2025 – is an opportunity to sharpen up the definition of hemp after the 2018 Farm Bill, which legalized industrial hemp federally, failed to anticipate a market for intoxicating downstream products that has developed in the intervening years.
‘Untested, unregulated, unsafe’
The emergence of intoxicating hemp has created “a national consumer market of untested and unregulated intoxicating products,” resulting in “the widespread availability of unsafe consumer products, often produced using unregulated industrial-scale chemical processes that fail to meet the fundamental product safety standards that Americans have come to expect in consumer packaged goods,” according to a letter sent April 10 to lawmakers on the House and Senate agriculture committees from USCC Executive Director Edward Conklin.
The 2018 farm legislation created a hemp loophole by not accounting for synthetically produced compounds – most of which are manufactured from CBD base material –such as delta-8 THC, delta-10 THC, THC-O-acetate, and THCP – substances often found in edible products that are widely available at retail outlets.
Bust-fueled
After the market for over-the-counter CBD extract health aids boomed and then busted beginning in 2019, companies left holding backlog CBD stocks started selling them to the dodgy producers of the psychoactive compounds, with delta-8 THC being the most popular of the substances used in gummies and other snacks.
An entirely new sector made up of products containing the synthetic, intoxicating hemp compounds rapidly developed among producers, distributors and retailers. The products, packaged to mimic popular brand-name snacks to make them attractive to youth, quickly spread unregulated through gas stations, convenience stores, bodegas, hemp and CBD shops, and other retail outlets.
Pushback
Pushback against the products, often referred to as “diet weed” or “marijuana light,” has come from several quarters. Recreational and medical marijuana stakeholders such as the USCC have argued the hemp intoxicants – sold as an alternative to delta-9 THC, the most commonly known form of THC that appears naturally in high concentrations in marijuana – represent unfair competition because they are not burdened by rules in states that have legal marijuana markets.
The U.S. Food & Drug Administration (FDA) has repeatedly warned consumers about hemp-derived intoxicants, noting that the unregulated and therefore often unsafe products may contain harmful chemicals, and should be kept away from children and pets. The FDA has also warned producers that the products are not categorized under GRAS (generally recognized as safe) guidelines and that any food containing the compounds is therefore also adulterated.
In March, top law enforcement officials from 20 states and the District of Columbia signed on to a bi-partisan letter urging Congress to use the upcoming Farm Bill to address the spread of intoxicating hemp products, suggesting the 2018 version of the agriculture legislation has both failed to create commodities markets for hemp food and fiber products while simultaneously creating “a significant threat to public health and safety . . . benefiting unregulated, untaxed, and unaccountable market actors.”
Finally, in the absence of federal action, many states have banned intoxicating hemp substances while others are treating them with the same rules that govern the marijuana sectors – presumably the fashion in which USCC would like to see the compounds treated under federal law.
Misleading consumers
The letter sent by USCC to Congress this week was addressed to Sens. Debbie Stabenow, a Michigan Democrat, and John Boozman, an Arkansas Republican, and Reps. Glenn Thompson, Republican of Pennsylvania and David Scott, a Georgia Democrat.
“The ability to purchase these products online, in gas stations, and in convenience stores, without any age-gating or labeling requirements, provides consumers with a false and misleading perception that these products are safe and lawful,” Conklin wrote to the congressional committees.
The intoxicating hemp market “poses a substantial health risk due to lack of regulation over the chemicals used in manufacturing products, potentially similar to what the country saw in the 2019 vaping illness (EVALI) outbreak or during the Prohibition-era ‘bathtub gin’ crisis,” the letter further warns.
Re-defining ‘hemp’
The 2018 Farm Bill defined industrial hemp as “any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers,” with no more than a 0.3% THC content.
USCC said that definition should be supplemented with language that excludes products intended for human or animal consumption which are made or derived from hemp or hemp bi-products, and those that contain “detectable quantities of total THC and any other intoxicant that can be derived from hemp including other forms of THC.”
Such products should be considered to be “marijuana” under the federal Controlled Substances Act, USCC said.
The proposed changes to the definition of hemp will give hemp farmers and producers “the flexibility they need to navigate the changing plant characteristics when growing in the field” while closing the loophole that has led to the gray market for unsafe hemp intoxicants, according to the letter.
“We believe that this solution opens the door to allow the FDA to step in and regulate non-intoxicating hemp consumer products under their existing authority, and provide the potential for a regulatory pathway by removing cannabis equivalent consumer products from unregulated markets,” the letter concludes.
Who is USCC?
USCC, started in February 2021 as an advocate for federal legalization via a unified marijuana industry front, supports banking access, tax reform and other policies aimed at easing the burden on existing state-legal businesses.
Members of the U.S. Cannabis Council listed on the organization’s website are AE Global, Atach, AYR Industries, Bridge City Collective, Chubby Gorilla, Cronos Group, Curaleaf, Dutchie, Global Alliance for Cannabis Commerce, The Grove, Marijuana Policy Project, Native Roots, Pax, Pharmacann, Scotts Miracle-Gro, Standard Wellness, Verano and World business insurance.
