State Cannabis Regulators Urge Congress To Change Hemp And Cannabinoid Rules Through 2023 Farm Bill

A group of state cannabis regulators is asking Congress to change laws around hemp and cannabinoids through the forthcoming 2023 Farm Bill, seeking to adjust the federal definition of the crop and modify rules around hemp-derived cannabinoids.

The changes are needed, says the Cannabis Regulators Association (CANNRA), because the 2018 Farm Bill, which legalized hemp nationwide, “inadvertently resulted in a thriving market for intoxicating cannabinoid products that are included (or claim to be included) within the definition of ‘hemp.’”

The 2018 Farm Bill defined hemp as cannabis containing less than 0.3 percent THC, but so far federal agencies have failed to establish a robust framework for how to regulate hemp-derived cannabinoids.

There are five specific adjustments CANNRA is calling on lawmakers to adopt in the letter, sent Friday to the chairs and ranking members of House and Senate agriculture committees:

(1) Add a definition for “Hemp-Derived Cannabinoid Products;”
(2) Define THC in terms of both THCA and delta-9 THC;
(3) Clarify that the 0.3 percent THC threshold applies only to the plant and name a federal regulator to set appropriate thresholds for intermediate or final hemp-derived cannabinoid products;
(4) Name a federal regulatory agency with a timeline for implementing regulations to protect consumer safety; and
(5) Ensure that states are not preempted from going beyond federal policies (which should set minimum standards) to protect consumer safety and public health.

First, the group wants to split the definition of hemp into at least two categories: one that would apply to hemp “grown for food, fiber, and feed” and another that would cover hemp “grown for any other purpose, including the extraction of cannabinoids.”

As part of those definitions, CANNRA also wants lawmakers to factor in THC-A, a precursor to delta-9 THC, when defining cannabinoid thresholds for what qualifies as hemp. Currently hemp is limited to 0.3 percent THC by dry weight, but that figure does not include THC-A, which the group’s letter notes “readily converts to delta-9 THC when heated, combusted, or aerosolized.”

Further, the letter says that because the 0.3-percent THC limit “can yield substantial amounts of THC in heavier items like chocolate bars and cookies,” the law should differentiate between THC limits in plants themselves and THC limits in finished products.

CANNRA, which recently expanded its membership to include international regulators, is also urging lawmakers to “identify, authorize, and fund a federal regulator with a background in public health and consumer protection” that would regulate cannabinoid products.

“Within a short and specified time,” the letter says, the agency should be required to provide clear definitions around cannabinoids; set minimum requirements for processing and manufacturing, ingredients, contaminant and potency testing, packaging and labeling; clarify whether “semi-synthetic cannabinoids and biosynthetic cannabinoids” are allowed under the definition of hemp; and launch an “education and enforcement approach to ensure compliance.”

In addition to action at the federal level, the advocacy group wants Congress to ensure that states and territories “can go beyond federal policies” by setting their own, more stringent regulations around hemp and hemp-derived cannabinoids.

The letter was signed by CANNRA’s executive director as well as members who help regulate cannabis in Maryland, Colorado, Nevada, Minnesota, Oklahoma, California and Georgia.

As CANNRA noted in its announcement of the letter last week, the group previously sent correspondence to congressional leaders in April, urging federal action to address what the group calls the “THCA loophole” or “derivatives loophole”—essentially, businesses complying with existing hemp rules but producing “intoxicating cannabinoid products” with effects more along the lines of high-THC marijuana.

Discussions are currently heating up over the next iteration of the Farm Bill. In addition to more clarity on cannabinoids, lawmakers will also likely try to include provisions to further ease burdens on the hemp market, which saw a significant decline in value last year, according to the U.S. Department of Agriculture (USDA).

Earlier this year, congressional lawmakers introduced legislation that would ease restrictions on certain hemp farmers. In March, Sens. Jon Tester (D-MT) and Mike Braun (R-IN) introduced the Industrial Hemp Act, which would remove background check requirements as well as rigorous testing mandates for growers of hemp used for non-extraction purposes. Reps. Matt Rosendale (R-MT) and Chrissy Houlahan (D-PA) sponsored a House companion bill in May.

Stakeholders have largely blamed the Food and Drug Administration (FDA) for the economic downturn, faulting the agency for not enacting regulations that would allow for the marketing of hemp-derived cannabinoids in dietary supplements and food products. FDA said it needed further congressional action to develop such rules.

A report last month from the Congressional Research Service (CRS) detailed challenges facing the nation’s hemp industry, highlighting FDA’s determination as a contributor to the market decline.

“Some claim that the lack of a federal regulatory framework for hemp-derived compounds has contributed, in part, to disruption of the U.S. hemp market, leading to both lower prices received by growers and subsequent production declines,” CRS said, referencing a USDA report showing sizable losses in production value from 2021 to 2022.

“Losses were pronounced in the hemp flower market, which is the source of most hemp-based derivatives and compounds such as hemp-derived CBD and other cannabinoids,” the CRS report said. “USDA reports that the farm-level value of all hemp flower production totaled $204 million in 2022, down from $687 million in 2021.”

A recent House subcommittee hearing specifically focused on the impact of the lack of FDA rules, and a separate pair of bicameral health committees has solicited expert input on the issue as they consider potential legislative fixes. CANNRA’s response said Congress needs to take a more holistic approach to the issue and consider rules for all hemp-derived cannabinoids, including delta-8 THC.

At the Drug Enforcement Administration (DEA), officials have made clear that the agency considers synthetically produced cannabinoids—which delta-8 THC often is—federally illegal controlled substances that are not covered under the 2018 Farm Bill.

Meanwhile, House Oversight Committee Chairman James Comer (R-KY) said in April that his panel would be launching an investigation into FDA’s CBD review. He requested that the agency turn over documents related to its decision not to regulated the cannabinoid. Even before the agency made that decision, the congressman expressed his intent to address the lack of rules.

FDA’s announcement that it wouldn’t be regulating CBD came days after the agency released finalized guidance that focused on developing cannabis-based drugs, and outlining the unique considerations for scientists around hemp and marijuana.

The agency did separately receive some bipartisan praise earlier this year for releasing first-ever guidance on developing psychedelic medicines. At the same time, it is working to review the federal scheduling of marijuana under a directive from President Joe Biden last year.

Agencies including FDA, the U.S. Centers for Disease Control and Prevention (CDC) and others discussed legalization models and cannabinoid regulations during a National Academies of Sciences, Engineering and Medicine meeting last week.

“We recognize that these products are out there. It’s a large market and there’s a need for some type of oversight,” Patrick Cournoyer, a senior science advisor at FDA, said of hemp-derived cannabinoids. “So the solution that we’ve suggested is that we’re prepared to work with Congress on a new way forward—on a new pathway that would take more of a harm-reduction approach that could enable consumer access with the regulatory oversight that is desired that we hear about, that people want.”

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