Think tank says ‘Miller Amendment’ would not ban CBD and other hemp cannabinoids

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Not all hemp cannabinoids would be banned under a controversial amendment proposed for the next U.S. Farm Bill, according to analysis from a key legislative agency.

The Congressional Research Service (CRS), Congress’s primary think tank, said the amendment, which would shut down widespread distribution of unregulated intoxicating hemp products, would not affect CBD and other non-psychoactive, natural compounds derived from the hemp flower.

“This (amendment) would not prohibit all hemp cannabinoid products, such as CBD, but would require determinations by USDA based on available scientific research and quantification methods,” according to a paper released earlier this week by the CRS, which provides Congress with nonpartisan policy analysis.

What’s in ‘Miller’

The legislative update to the Farm Bill, known as the Miller Amendment after Illinois Rep. Mary Miller who introduced it, passed out of the House Committee on Agriculture last month. It redefines hemp to distinguish between plants grown for flowers from which the psychoactive hemp substances are derived, and the more traditional “industrial hemp,” which includes crops farmed for food in the form of grain, and those grown for the plant’s valuable fibers.

As passed by the House committee, the updated draft Farm Bill allows only naturally occurring or naturally derived nonintoxicating compounds and redefines the 0.3% THC limit for hemp to a combination of delta-9 THC and THCA.

Some language unchanged

Language in the landmark 2018 Farm Bill that legalized industrial hemp specifically referred to 0.3% delta-9 THC limit as the drawing line between hemp and marijuana. It also set out a unified, all-inclusive definition for hemp as “any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers.”

That statutory language would largely remain unchanged, the CRS analysis observes, as the updated language “specifies that hemp would exclude (only) non-naturally occurring synthetic and intoxicating products (i.e., allows only naturally occurring or derived nonintoxicating products).”

The exclusion of synthetic compounds is consistent with an April 2024 ruling by the U.S. Drug Enforcement Agency (DEA) regarding the intoxicating synthetic compound HHC, according to the CRS analysis. In that case, DEA determined that HHC “does not occur naturally in the Cannabis sativa L. plant and can only be obtained synthetically, and therefore does not fall under the definition of hemp.” Some states have adopted or are considering similar restrictions for the full range of synthetic hemp compounds that also include delta-8 THC, delta-10 THC, THC-O-acetate, THCP and others, most of which are made by putting CBD extracted from hemp flowers through a process in the lab.

“While the amendment does not define intoxicating, it would prohibit hemp cannabinoid products with ‘quantifiable amounts’ of total THC (including THCA) or any other cannabinoids that have (or are marketed to have) ‘similar effects on humans or animals’ as (delta-9) THC, as determined by USDA,” CRS emphasized.

Hemp for food & fiber

The pending Farm Bill update would therefore limit the definition of industrial hemp to mean hemp grown for fiber or for the “whole grain, oil, cake, nut, hull, or any other non-cannabinoid compound, derivative, mixture, preparation, or manufacture of the seeds of such plant,” according to the CRS paper.

CRS noted that the U.S. Food and Drug Administration (FDA) continues to assert that products containing cannabis and cannabis-derived compounds, including CBD, THC and other cannabinoids remain under its jurisdiction. As such, FDA contends it is illegal under the Federal Food, Drug, and Cosmetic Act (FFDCA) “to introduce food containing added CBD or THC into interstate commerce, or to market CBD or THC products as, or in, dietary supplements, regardless of whether the substances are hemp-derived.”

Other changes

Among other changes to the Farm Bill affecting hemp, language in the measure would reduce or eliminate testing requirements and background checks for licensee applicants, the CRS analysis observes. Also, proposed provisions would take steps to eliminate the existing 10-year period of licensing ineligibility for felons who were convicted of crimes related to a controlled substance.

The next Farm Bill – originally the 2023 Farm Bill, but which has been repeatedly pushed back and may not be ready until 2025, is a sweeping $1 trillion agriculture spending package passed every five years.

CRS noted that an appropriations bill currently under consideration in the House also includes language that would bar intoxicating hemp compounds. While that legislation also makes allowances for natural and naturally-derived hemp cannabinoid products, it does not include a definition of industrial hemp, which “could create confusion,” CRS said.

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