March 21, 2023

Credit: The Hill

Five years ago, Congress used the farm bill to legalize hemp production, creating a booming industry but leaving gaping legal loopholes around interstate commerce and derivative cannabis products.

Now, advocates in the cannabis industry and lawmakers are hoping to make things right in the next iteration of the bill, officially called the Agriculture Improvement Act, which must be passed every five years.

“Hemp was the big new thing in the previous farm bill,” Senate Minority Leader Mitch McConnell (R-Ky.), who pushed for legalization on behalf of Kentucky farmers interested in growing the lucrative crop, said last month in Louisville.

“So far, it’s not worked out like we had hoped. It’s had a lot of challenges related to the difficulty of getting guidance out of the Food and Drug Administration,” McConnell added.

The Food and Drug Administration (FDA) appears to agree. In January, the agency’s Principal Deputy Commissioner Janet Woodcock announced the agency’s conclusion that the FDA needs a new path to properly regulate and manage cannabidiol (CBD) products.

“The FDA’s existing foods and dietary supplement authorities provide only limited tools for managing many of the risks associated with CBD products,” she said in a statement.

CBD made from hemp (a class of the cannabis sativa plant) was effectively legalized in the 2018 farm bill, though guidelines vary by state due to differing controlled substance laws.

This change under the farm bill marked the first time that the federal government differentiated hemp from other cannabis products banned under the Controlled Substances Act and regulated by the Drug Enforcement Agency (DEA).

But the question of which hemp products are legal has been far from clear, and the regulatory gray area has been the subject of litigation, regulatory hand-wringing and interagency debate.

Advocates in the hemp industry say the farm bill is an ideal vehicle for updating and reforming agriculture policies and creating a more solid framework for industry expansion.

After that farm bill was signed, former FDA Principal Deputy Commissioner Amy Abernethy told lawmakers it led to a misconception that all hemp products are legal to sell in interstate commerce, leading some producers to start marketing unapproved CBD products.

The most contentious products are delta-8 and delta-9 THC products, which are derived from hemp plants but extremely concentrated to produce similar psychoactive and intoxicating effects to THC derived from marijuana plants.

In states that have not legalized marijuana for recreational use, delta-8 and delta-9 sales have taken off at dispensaries, which are capitalizing on the legal ambiguity created by the farm bill.

Details under the 2018 law concerning delta-8 THC and other cannabinoids were debated in the 9th Circuit Court in 2022. The court ruled that delta-8 THC products are considered legal under the 2018 farm bill. In the decision, the panel wrote that any intent to only legalize industrial hemp and exclude a “potentially psychoactive substance” like delta-8 THC is not made clear in the legislation.

However, the DEA clarified last month that delta-8 and delta-9 THC are both considered controlled substances because they are obtained synthetically, according to a Forbes report.

But the products are still widely sold in many U.S. states. Last year, the FDA and national poison control centers reported an “uptick in adverse events” related to the consumption of products containing delta-8 THC, with cases including symptoms like hallucinations, vomiting, anxiety and loss of consciousness.

The Senate and House agriculture committees have started hammering out their versions of the next farm bill, with hemp industry advocates and opponents watching closely.

Jonathan Miller, general counsel for the U.S. Hemp Roundtable, an industry coalition, says the organization’s top priority is to define the FDA’s role in hemp and CBD regulation.

“That might be part of the farm bill, it might be something separate, but it is our top priority when it comes to 2023,” Miller said.

Miller is also encouraging leaders on the new farm bill to raise the limit on THC concentration for hemp products from 0.3 percent to 1 percent.

“So many farmers have had to burn their crops because it might have tested at 0.4 or 0.5,” he said.

Scott Chipman, vice president of Americans Against Legalizing Marijuana, is hoping lawmakers will use the 2023 farm bill to move in the opposite direction.

Chipman said his organization is warning lawmakers of the harms and loopholes presented by the 2018 legislation and urging them to declare illegal “any product without FDA approval containing THC.”

“The fact that the Farm Bill is being reconsidered gives us hope that Congress understands the mistake that has been made and will fully correct that error,” Chipman said in an email.

An FDA spokesperson told The Hill that the agency will not comment on the proposed farm bill legislation but is prepared to work with Congress to create a “new regulatory pathway” to manage hemp-derived products and the risks associated with CBD.

Others, including Miller, are also pushing Congress to remove a 2018 farm bill statute that bars people from producing hemp if they were convicted of a felony for a controlled substance within the past 10 years.

Rep. Chellie Pingree (D-Maine), Reps. David Trone (D-Md.), David Joyce (R-Ohio) and Nancy Mace (R-S.C.) announced new legislation, the The Free To Grow Act, early in March. The bill signaled lawmakers’ interest in changing the 2018 statute and allowing formerly incarcerated individuals to participate in the hemp industry.

“While hemp production was federally legalized by the 2018 Farm Bill, the industry’s growth is being stunted by red tape, discriminatory policy, and regulatory uncertainty,” Pingree said in a release.

“The upcoming Farm Bill gives Congress a once-in-five-years opportunity to correct the unfair policy that bans people with drug convictions from growing hemp,” she added.

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A national report by the Department of Agriculture in 2021 valued hemp production in the U.S. at $824 million. However, Pew reported in July of 2021 that the hemp market has shrunk since 2019, when it boomed immediately after legalization, with a drop of more than 80 percent in licensed hemp acreage nationally.

Chris Hope, chair of the committee for the National Cannabis Industry Association, said the group wants more structure for commercial and industrial hemp production.

“We definitely believe this: we do not want this in the hands of children. We want to make and assure that the product is safe,” Hope said. “We want there to be uniformity of this so this industry can grow.”