To meet the federal definition of hemp under the 2018 Farm Bill, a cannabis product must contain less than 0.3 percent delta-9 THC. Now, in a new letter clarifying that limit, a top Drug Enforcement Administration (DEA) official says the threshold includes not only delta-9 THC itself but also the related cannabinoid THCA, which is converted into delta-9 THC when heated—a process known as decarboxylation.
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“In regards to THCA, Congress has directed that, when determining whether a substance constitutes hemp, the delta-9 THC concentration is to be tested ‘using post-decarboxylation or other similarly reliable methods,'” says the letter, sent earlier this month by Terrence Boos, chief of DEA’s drug and chemical evaluation section.
“The ‘decarboxylation’ process converts delta-9-THCA to delta-9-THC,” Boos continued. “Thus, for the purposes of enforcing the hemp definition, the delta-9 THC level must account for any delta-9 THCA.”
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“Accordingly, cannabis-derived THCA does not meet the definition of hemp under the CSA,” he concluded, “because upon conversion for identification purposes as required by Congress, it is equivalent to delta-9-THC”
The position articulated in the May 13 letter comes in response to a request for clarification sent to DEA last month by cannabis attorney Shane Pennington, who declined to comment for this story. According to the DEA letter, Pennington last month “requested the control status of tetrahydrocannabinolic acid (THCA) under the Controlled Substances Act.”
A similar request from Pennington, a lawyer at the firm Porter Wright, was also the impetus for DEA’s declaration in 2022 that marijuana seeds are considered legal hemp as long as they don’t exceed federal THC limits.
DEA’s position on THCA comes as federal lawmakers reconsider how to address hemp and cannabinoids under a revised version of the Farm Bill, with a key House committee having recently adopted an amendment that would generally ban hemp-derived cannabinoids such as delta-8 THC.
DEA is essentially saying in the letter that because THCA so readily converts into delta-9 THC, it can’t be ignored when measuring a product’s delta-9 THC level.
That’s not at all how the U.S. hemp industry sees it, however.
“This interpretation would destroy the hemp industry,” Jonathan Miller, general counsel for the U.S. Hemp Roundtable, told Marijuana Moment on Friday. “Most hemp growers, even fiber and grain growers, would be out of compliance.”
Asked if he thought hemp farmers would object to the idea that a product that tests at 0.2 percent delta-9 THC but also 4.6 percent THCA, Miller replied: “I would imagine nearly every hemp farmer and company would find this interpretation objectionable.”
Shawn Hauser, who co-chairs cannabis-focused law firm Vicente LLP’s hemp and cannabinoids practice, said the Farm Bill “requires biomass to be tested pre-harvest for total THC, which considers the percentage of THCA in pre-harvest material.”
Hemp products are required to have a pre-harvest certificate of analysis showing the products are compliant, she said.
“So pre-harvest, a plant with high THCA likely exceeds the maximum allowable THC content and wouldn’t be lawful,” Hauser said. “This has been a point of confusion among businesses and state regulators.”
The situation—including ongoing discussions of how to amend the Farm Bill’s handling of cannabinoids—”just underscores the imminent need for legalization and regulation of the whole plant,” she added. “Trying to draw arbitrary lines in the plant and the law without a federal regulatory or enforcement framework doesn’t work.”
Boos, DEA’s drug and chemical evaluation section chief, has been responsible for a number of recent agency opinions on cannabis and other drugs. Notably in 2022, for example, he penned the DEA letter clarifying that marijuana seeds are considered legal hemp as long as they fall below federal THC limits.
Boos issued another relevant administrative interpretation last year when he asserted that DEA considers the intoxicating cannabinoid delta-8 THC an illicit Schedule I drug if it’s synthesized from federally legal CBD.
More recently, he opined in a January letter that psilocybin mushroom spores are not, on their own, federally prohibited. They become illegal only after they begin producing psilocybin, he said.
“If the mushroom spores (or any other material) do not contain psilocybin or psilocin (or any other controlled substance or listed chemical), the material is considered not controlled” under the Controlled Substances Act (CSA), Boos wrote at the time.
Delta-8 THC products have proliferated on the market since hemp’s legalization, essentially existing in an unregulated legal grey area. If the cannabinoid is naturally extracted from hemp, it’s federally legal. But it’s generally considered common practice to synthesize it from CBD because it’s a more cost-effective process. Some states have taken steps to restrict delta-8 THC, however.
At DEA’s 2023 Supply Chain Conference in May, Boos similarly explained that synthetic cannabinoids are banned, and he said that DEA is in the process of developing a final rule to formally clarify that policy, at the recommendation of the U.S. Department of Health and Human Services (HHS).
Boos also told a lawyer last year that the minor cannabinoids delta-8 THC-0 and delta-9 THC-O are prohibited because they can only be synthetically produced.
Some experts have disputed DEA’s interpretation of the statute on intoxicating hemp-based cannabinoids, however. And a federal appeals court ruled in 2022 that the way that existing rules are written makes delta-8 THC exempt from control, as the law is “silent” on the minor cannabinoid while clearly legalizing hemp extracts and derivatives.
The arguments come amid an ongoing effort to reformulate hemp and cannabinoid sections of the farm bill. On Thursday, a key House committee amended this year’s pending Farm Bill in a way that would impose a general ban on hemp-derived cannabinoids. Cannabinoids that are “synthesized or manufactured outside of the plant” would no longer meet the definition of legal hemp.
Some industry stakeholders have said the change could even federally criminalize CBD products because the measure would apply to all ingestible hemp products with any level of THC.
Several Republican members of the congressional committee, however, made comments in opposition to the amendment.
“American farmers around the country have invested their time and resources over the last six years to develop a domestic supply chain of hemp and hemp products,” Rep. Jim Baird (R-IN) said. “Hemp provides a great opportunity for family farm to diversify their farm income by using him as a rotational crop.”
“American farmers deserve the certainty afforded with the current definition of hemp,” he said. “The proposed amendment arbitrarily changes the current congressionally written definition of hemp.”
Paradoxically, select marijuana businesses have found themselves on the same side as prohibitionists in pushing such a ban. In a letter to congressional leaders last month, the U.S. Cannabis Council (USCC) proposed specific language they wanted to see included that would place hemp-derived cannabinoids containing any amount of THC under the definition of federally illegal marijuana.
While they’ve focused on the need to address public safety concerns related to unregulated “intoxicating” cannabinoid products such as delta-8 THC, some hemp industry advocates say the effect of the proposed language could be a ban on virtually all non-intoxicating CBD products as well, as most on the market contain at least trace levels of THC, consistent with the Farm Bill definition of hemp that allows for up to 0.3 percent THC by dry weight.
“The 2018 Farm Bill has wrongly been used to justify the mass production and sale of unregulated intoxicating hemp products,” USCC Executive Director Ed Conklin said in a press release following the amendment vote. “We support a uniform approach to regulating intoxicating THC products. That means intoxicating hemp products should be regulated the same as cannabis products. We believe that all of these products should be available for sale to adults with strict age gating and safety standards.”
Miller, at the U.S. Hemp Roundtable, alerted supporters to the amendment’s introduction on Thursday, saying the group’s members “strongly oppose” the legislation and urged lawmakers to defeat it.
Outside of the cannabinoid ban, the bill as drafted would build upon the federal legalization of the crop under the 2018 version of the legislation in several meaningful ways, including by revising the definition of hemp to create separate categories for producers who grow the crop for cannabinoid extraction for human and animal consumption and for “industrial hemp” producers who cultivate it for fiber, grain, oil and seed not intended for consumption.
Under the legislation, those who are licensed as “industrial hemp” producers could see reduced regulatory restrictions, with the U.S. Department of Agriculture (USDA), states and Indian tribes empowered to authorize visual inspections and “performance-based sampling methodologies” for compliance purposes.
Farmers growing hemp to extract cannabinoids for human or animal consumption, however, would continue to be subject to more intensive inspections and laboratory testing as prescribed under the 2018 Farm Bill.
Meanwhile, the hemp market started to rebound in 2023 after suffering significant losses the prior year, the latest annual industry report from the U.S. Department of Agriculture (USDA) that was released last month found.
The data is the result of a survey that USDA mailed to thousands of hemp farmers across the U.S. in January. The first version of the department’s hemp report was released in early 2022, setting a “benchmark” to compare to as the industry matures.
Bipartisan lawmakers and industry stakeholders have sharply criticized FDA for declining to enact regulations for hemp-derived CBD, which they say is largely responsible for the economic stagnation.
To that end, FDA Commissioner Robert Califf testified before the House Oversight and Accountability Committee last month, where he faced questions about the agency’s position that it needed additional congressional authorization to regulate the non-intoxicating cannabinoid.
USDA is also reportedly revoking hemp licenses for farmers who are simultaneously growing marijuana under state-approved programs, underscoring yet another policy conflict stemming from the ongoing federal prohibition of some forms of the cannabis plant.
For the time being, the hemp industry continues to face unique regulatory hurdles that stakeholders blame for the crop’s value plummeting in the short years since its legalization. Despite the economic conditions, however, a recent report found that the hemp market in 2022 was larger than all state marijuana markets, and it roughly equaled sales for craft beer nationally.
Internally at USDA, food safety workers are being encouraged to exercise caution and avoid cannabis products, including federally legal CBD, as the agency observes an “uptick” in positive THC tests amid “confusion” as more states enact legalization.
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