Legality of hemp-derived cannabinoids put on hold another year

05-Dec-2023 - Last updated on 05-Dec-2023 at 15:55 GMT

Getty Images / Douglas Rissing

Related tags Farm Bill CBD and Hemp delta-8

The recent stopgap extension of the Farm Bill means more of the same: Uncertainty for the US hemp industry.

Every five years, Congress drafts a new Farm Bill. The legislation has traditionally focused on farm commodity program support for staple commodities such as corn, soybeans, cotton, rice and sugar. The most recent Farm Bill, passed in 2018, legalized hemp production and jump started the “green rush” for hemp growers and manufacturers. However, that legislation expired Sept. 30.

Scott Mazza, founder, Vitality CBD, said the 2023 Farm Bill presented the first chance to update this cornerstone bill since it legalized hemp nationwide in 2018.

“Unfortunately, this won’t happen for another year,” Mazza said. “The recent extension of the Farm Bill until September 2024, tucked into the emergency funding bill passed in November to avert a government shutdown, casts a shadow across our industry. This is because important decisions—like the legality of hemp-derived cannabinoids—will now have to wait another 12 months.”

More uncertainty for industry

Mazza said another year under the conditions of Farm Bill 2018 equates to an extension of uncertainty for CBD.

“In essence, this extension prolongs the industry’s wait for stability. Policymakers need to recognize the urgency in providing a clear and supportive regulatory framework for sustained industry growth,” he added.

Matt Zehner, Insights Manager at Brightfield Group, explained that Brightfield Group’s CBD market sizing includes two scenarios:

With federal regulation implemented by 2024, the US CBD market is expected to reach an annual value of $10.3 billion by 2028 ($9.2 billion excluding pharmaceuticals), driven by accelerated growth of ingestible products like drinks and gummies as well as increased acceptance by mainstream retailers.
Without such guidance, the CBD market is expected to remain decidedly more niche, with annual sales in 2028 forecast to hit $5.2 billion ($4.2 billion sans pharmaceuticals).

In the meantime, Zehner said advocates have time to influence legislators, who must ultimately propose changes to the 2018 rules.

“So far, legislators have been focused on industrial hemp, introducing the Industrial Hemp Act of 2023 (House Bill 3755), which makes industrial hemp distinct from flower-rich hemp (where the cannabinoids are),” said Zehner.

The delta-8 dilemma

“Of particular concern is the legal limbo surrounding delta-8 THC, a hemp-derived compound facing bans in 20 states despite federal legality under Farm Bill. This extension means producers, including us at Vitality CBD, will navigate another year of ambiguous regulations,” said Mazza. “The lack of clarity hampers planning and innovation, limiting the industry’s growth potential.

Madeline Scanlon, Cannabis Insights Manager, Brightfield Group, told us that she’s observed recent advocacy efforts calling for stricter definitions of hemp that ultimately close the THCa and synthesized cannabinoid loophole. She pointed to the Cannabis Regulators Association (CANNRA), who sent a letter to Congress that detailed changes the group would like to see in the next Farm Bill.

Changes CANNRA would like Congress to consider include: (1) adding a definition for “hemp-derived cannabinoid products,” (2) defining THC in terms of both THCA and delta-9 THC, (3) clarifying that the 0.3% THC threshold applies only to the plant and naming a regulator to set appropriate thresholds for intermediate or final hemp-derived cannabinoid products, (4) naming a federal regulatory agency with a timeline for implementing regulations to protect consumer safety, and (5) ensuring that states are not preempted from going beyond federal policies (which should set minimum standards) to protect consumer safety and public health.

“Hemp advocates have long been asking for the 0.3% delta-9 THC threshold to be raised to 1% to make it easier to avoid ‘hot crops’ (those that exceed the 0.3% limit). However, such advocacy is not concerned with protecting the THCa and synthetic-THC loopholes. In a scenario where hemp can contain up to 1% delta-9 THC, it could keep the low-dose psychoactive hemp market open for business as long as the cannabinoid is naturally derived delta-9 THC from hemp,” explained Scanlon.

She noted that another piece of legislation, the bipartisan Hemp and Hemp-Derived CBD Consumer Protection and Market Stabilization Act of 2023, does not currently extend regulation to hemp-synthesized cannabinoids.

“So, those operating in the THCa and synthesized cannabinoid space should consider how they can lobby for their industry in the next year,” she advised.

“The unresolved status of delta-8 THC, exacerbated by the patchwork of state-level bans, adds complexity to the landscape,” said Mazza. “This extension means that producers and consumers will continue to navigate the murky waters of legal uncertainty for another year.”

But beyond that, the delta-8 party may be over.

“For many legislators, the issue of hemp is less important than other pressing issues that will be part of the next Farm Bill. This could be a positive for hemp-derived THC producers if Congress decides to kick the can down the road, but it remains to be seen how high hemp regulation will rank on the lawmakers’ agenda,” said Scanlon. “Companies should remain wary, though – without strong advocacy for the hemp THC market, companies may only have a year left to operate in the loopholes of the 2018 Farm Bill.”