Vicente Sederberg LLP Hemp Update: April 2022
Apr 4, 2022
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Federal Updates
Case Update: Hemp Industries Association and RE Botanicals, Inc. v. DEA
On April 19, attorneys for the HIA and RE Botanicals (including VS’s Shane Pennington) will deliver oral arguments to a D. C. Circuit panel centering on the DEA’s 2020 interim final rule that purports to regulate hemp manufacturing byproducts that go “hot” during the production process. Read more about the history of the case here.
Members of the legal team recently discussed the case, why it is critical to the hemp industry’s survival, and what a loss would mean for hemp companies across the nation. Watch the briefing.
Your support of this case is critical. The industry cannot stand idly by while the DEA attempts to undo the decades of hard work by the hemp industry to secure hemp’s regulation as an agricultural crop. Please make a tax-deductible donation to support this pivotal case challenging the DEA's overreaching interim final rule that has far-reaching consequences for the hemp industry. Donate to the Hemp Legal Defense Fund.
Hemp Advancement Act of 2022 Aims to Raise THC Limit in Hemp to 1%
U.S. Representative Chellie Pingree (D-Maine) introduced the Hemp Advancement Act of 2022 to improve the 2018 Farm Bill’s hemp provisions and provide greater clarity and flexibility to hemp growers and processors.
The act would:
- Raise the allowable THC threshold for hemp and in-process hemp extract
- Remove the requirement that hemp testing occur in DEA-registered labs
- End the 10-year ban on people with drug-related felony convictions receiving a hemp license
Read this article with commentary from VS partner Shawn Hauser to learn more about the act. Check out this VS Insight for other federal hemp legislation to watch in 2022.
Why POTUS Should Take Reps. Mace and Lee's Proposal for UN to Deschedule Cannabis Seriously
Reps. Nancy Mace (R-SC) and Barbara Lee (D-CA) recently filed a resolution imploring President Biden to push the UN to remove cannabis from the list of controlled substances in the Single Convention on Narcotic Drugs of 1961. There may be a good reason for President Biden to take this bipartisan proposal seriously: To prevent the DEA from placing hemp back on the federal Controlled Substance Act’s schedules. Read this VS Insights article from VS counsel Shane Pennington for more.
USDA Releases Results of Benchmark National Hemp Survey
The U.S. Department of Agriculture (USDA) recently released data from their first-ever large scale hemp production survey. The survey is based on responses from 20,501 hemp growers and provides data on outdoor hemp production, acreage for operations, primary and secondary uses for the crop and what kinds of prices producers are able to bring in. Results indicate a U.S. hemp market valued at $824 million in 2021. Read highlights from the study and other commentaries in this article.
FDA Warns CBD Companies Making COVID-19 Claims: 7 Key Takeaways from the Latest CBD Product Warning Letters
Marking the first robust enforcement by the FDA in 2022, the agency, in conjunction with the FTC, issued seven hemp-CBD-related warning letters to businesses around the country last week for fraudulent COVID-19 claims. Read this VS Insights article for a look into what to do—or not do—to avoid a warning.
FDA Again Pushes Proposal for Dietary Product Listing
As part of the Biden administration’s FY23 budget proposal to Congress, the FDA outlined a proposal to amend the Dietary Supplement Health and Education Act of 1994 (DSHEA) through a requirement that supplement products be listed annually with the agency, "including basic information about each unique product." Read more here.
FDA Updates Consumer Warning About Delta-8
The FDA recently updated its consumer report entitled “5 Things to Know about Delta-8 Tetrahydrocannabinol – Delta-8 THC” to warn consumers about the unregulated and non-FDA-approved products that “may pose serious health risks.” The update includes updated statistics on adverse event reports involving Delta-8 containing products.
FDA Signs Off on Human Trials of CBD to Treat Opioid Addiction
The FDA gave the green light to Ananda Scientific to start human testing of its CBD drug Nantheia ATL5. The trials will be run out of UCLA and are funded by the U.S. National Institute on Drug Abuse. Read more here.
USDA Agricultural Research Service Presents National Hemp Webinar Series
The webinar series on hemp research aims to broaden the scope of training, education, and connectivity within the hemp community. Upcoming webinars in the series are below. Register here.
- April 6 - Hemp Food Science
- April 20 - Hemp Diversity/Genetics
- May 4 - Economics of Hemp Production
United States Pharmacopeia Prepares to Add CBD
The United States Pharmacopeia (USP) is in the process of adding CBD to its list of drugs and their properties. The USP’s National Formulary is an extensive list of drugs and their methods of detection that is officially recognized by the US federal government. From aspirin to zinc oxide, the pharmacopeia contains information on thousands of chemical compounds that are used as reference standards for countless labs across the country. And now CBD is getting added to the list. Read more here.
General Updates
The Source Rule is Dead
Read this On Drugs post from VS’s Shane Pennington for proof that marijuana seeds, tissue cultures, and genetic material aren't controlled substances.
"The Source Rule is dead. What do I mean by that? Simply that whether a particular sample of CBD (or any other cannabis-derived material) is a controlled substance doesn’t depend on the sample’s source. Rather, in the wake of the 2018 Farm Bill, the analysis depends entirely on whether the sample contains .3% delta-9 THC or more on a dry weight basis. If so, it’s schedule I “marihuana.” Otherwise, it’s hemp."
Study Reports No Evidence of Liver Toxicity Associated with CBD Use
Observational data gathered from 839 participants—ages 18–75 from across the U.S. and known to be taking hemp-derived CBD products orally for a minimum of 30 days—showed that CBD at the doses consumed in the study is not associated with clinical liver toxicity. View the study here.
State Updates
Hemp States to Watch in 2022: California
Continuing our look over the hemp horizon and keeping a close eye on key states to watch in 2022, California is hoping that this will be the year that its hemp industry emerges from the shadows and takes its place among the nation's hemp leaders. This is because AB-45, which Governor Newsom signed into law in October 2021, finally permits California operators to manufacture and sell hemp-derived products—including hemp-derived food and dietary supplements. Read this VS Insight from partner David Kramer to learn what California hemp operators should expect from the CDPH, and the Industrial Hemp Compliance Program generally, in the coming months.
Maryland
A bill was recently introduced (HB 1478) that would authorize the sale of consumable hemp products if they are “tested by an independent testing laboratory to ensure the product meets applicable safety standards.” The bill would also permit those finished products to contain a total THC concentration of up to 1% on a dry-weight basis.
Michigan
Gov. Whitmer filed Executive Order 2022-1, which consolidates cannabis and hemp regulatory bodies responsible for overseeing cannabis and hemp processing, distribution, licensing, safety compliance, and sales. Michigan Department of Agriculture & Rural Development will retain oversight over hemp cultivation. This takes effect April 13.
New York Law Will Authorize Hemp Farmers and Processors to Cultivate and Process Cannabis
In February, New York’s governor signed legislation into law intended to accelerate the cultivation, processing, and distribution of cannabis in New York. New York hemp farmers who receive a conditional license will be permitted to grow and/or process cannabis starting in the 2022 growing season. To be eligible for these conditional licenses, applicants must have been licensed by the state to grow and/or process hemp. Register for our April 6 webinar to get the low-down on this license.
Read this VS Insight from VS counsels Michelle Bodian and Jennifer Cabrera for conditional adult-use cultivator and processor license details.
Oregon
To ensure that hemp products containing large amounts of THC don’t comingle with general market products, the Oregon Liquor & Cannabis Commission approved a rule limiting the general market sale of hemp edible products to 2 mg of THC in a single serving, and up to 20 mg THC per container of hemp product. That rule is effective July 1, 2022. Another rule requires that non-intoxicating artificially derived cannabinoids go through the ordinary regulatory review process required for ingredients in dietary supplements or food products.
Oregon legislators introduced SB 1564, which would allow the Oregon Department of Agriculture to refuse to issue industrial hemp grower licenses—based on the supply and demand of hemp—for a period of time which ODA officials deem necessary. According to the bill text, the legislation was declared an “emergency” and was introduced to limit the number of illicit cannabis operations in Oregon.
Texas
The case against the state’s smokeable hemp ban continues. The Texas Supreme Court recently questioned whether the state's ban on local businesses manufacturing and producing smokable forms of hemp is reasonably based on its interest in protecting public health and safety or if it constitutes an oppressive, unconstitutional regulation of economic activity.
For a look into the history of the case, read this VS Insight from Shane Pennington, who is on the legal team representing the plaintiffs.
Virginia
A bill is sitting on Governor Youngkin’s desk which would place THC limits on hemp products (0.25 mg/per serving and 1 mg/per product). The Governor has until April 11, 2022 to act.
Washington
A bill was recently introduced (SB 5983) that would ban hemp-derived THC products, including Delta-8. An alternative bill to ban all synthetic cannabinoids outside of Washington’s regulated cannabis market was also introduced.
West Virginia
A bill was recently introduced (SB 666) that would add the active chemicals in Kratom and Delta-8 THC to the Schedule I Controlled Substances list.
State-by-State Hemp & Cannabinoid Compliance Guide
VS’s State-by-State Hemp & Cannabinoid Compliance Guide is an affordable, easy-to-use compliance solution to help your business navigate the ever-changing regulatory environment of hemp-derived products. Take the guesswork out of ensuring compliance with all aspects of selling hemp-derived products in different states—from packaging and labeling, to testing, distribution, and more. Request a complimentary consultation with an attorney to discuss a customized package that best fits your needs.
Status of State and Tribal Hemp Production Plans for USDA Approval
International Updates
Mexico High Court Clears Low-THC Cannabis Production
Mexico is making progress toward full cannabis legalization, with the judicial branch leading the way, as a ruling issued by the Supreme Court threw out barriers to low-THC cannabis production. The ruling allows for cannabis cultivation, as long as the plant will produce ≤1% THC concentrations.
Events
Webinar | New York Cannabis Licensing Update: Conditional Cultivator License
New York recently released its first adult-use license applications, putting (hemp) farmers first. The adult-use conditional cultivator license is intended to jumpstart the Empire State’s cannabis industry by allowing hemp farmers to temporarily cultivate cannabis.
Attend this webinar on Wednesday, April 6, 2022 at 2 p.m. ET to learn more about the adult-use conditional cultivator license and how you can prepare. During the session, panelists will break down the who, what, when, why and hows of the license.
Webinar | Minor Cannabinoids & Trending Topics in Hemp
Join us on Wednesday, April 13, 2022 at 11:30 a.m. MT / 1:30 p.m. ET for a session exploring trending topics in hemp. During the session, members of our hemp team will dive into the legality, regulation, and lawsuits surrounding minor cannabinoids, current federal hemp legislation, and what we expect and hope to see in the 2023 Farm Bill.
Contact our hemp team with any questions.