Vicente LLP Hemp Update: May 2023

May 25, 2023

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Federal Updates

Stakeholder Call Thursday, May 25: A New Way Forward for Cannabidiol and Other Hemp Products

The U.S. Food and Drug Administration's Stakeholder Engagement Staff invites you to an important stakeholder call to provide information about FDA's conclusion that a new regulatory pathway is needed to provide appropriate regulatory oversight for cannabidiol products. The call will be held on Thursday, May 25, 2023, at 3:00 PM ET. Click here for more information.

DEA Proposes to Reschedule Hemp-Derived Cannabinoids

On May 4, 2023, the DEA announced at its annual supply chain conference that the DEA will be releasing new rules to reschedule certain hemp-derived cannabinoids. Terrance Boos, chief of the DEA’s Drug and Chemical Evaluation Section, addressed delta-8 and synthetic cannabinoids in his presentation, stating that converting CBD to delta-8 THC is unlawful and that “synthetic tetrahydrocannabinols were not exempted” from the Controlled Substances Act (CSA). Read more about this emerging story. Vicente LLP will provide updates as this story unfolds.

Sellers of Hemp and Cannabis Products Get Hit with Prop 65 Notices of Violation

If you sell a product in California or to California consumers that contains delta-9 THC and/or causes exposure to cannabis smoke, a Prop 65 warning is a must.

In early May, five sellers of hemp and cannabis products were served 60-day notices of violation (“NOVs”) for failure to warn for exposure to delta-9 THC, cannabis smoke, and beta-myrcene. The NOVs target all types of products, including smokable hemp, ingestible, and topical products. The NOVs also include other alleged violations, including violation of California’s prohibition against the sale of smokable hemp products and “deceptive marketing practices” for using popular cannabis strain names for hemp flower, leading a person to believe the products are cannabis and not hemp.

If you are selling your cannabis or hemp products to California consumers—whether online or in retail outlets—your products and your website must have compliant Prop 65 warnings. Read this article for more information on recent changes in Prop 65 warning language for hemp and cannabis products. If you have questions about Prop 65 requirements, please contact Vicente attorney Andrea Golan.

State Updates

State-by-State Hemp & Cannabinoid Compliance Guide: Intoxicating Hemp Products

With such an unusual number of states passing legislation regulating hemp products—including delta-8 and other THCs—it’s imperative that your business remains compliant. If you haven’t already, now is an opportune time to subscribe to our newest state-by-state chart that shows the legality of selling intoxicating or synthetic cannabinoid hemp products (including, but not limited to Delta-7, Delta-8, Delta-10 THC, THC-0, and HHC). The chart also includes whether the state has age restrictions and cannabinoid limitations for these types of products.

Learn more about other charts in the guide here, and request a complimentary consultation with an attorney to discuss a customized package that best fits your business needs.

Arkansas

New Arkansas Hemp Law Prohibits THC Isomers and Synthetic Forms of THC

Arkansas' hemp legislation SB-358, now known as Act 629 has a stated purpose “to prohibit the production and sale of intoxicating substances derived from hemp.” It does so by prohibiting delta-8 as well as other THC isomers and synthetic equivalents of THC. Read “Will Arkansas' Bold New Hemp Law Stand? A Closer Look at the Controversial Trigger Provision” for a breakdown of the new law.

Colorado

Colorado’s “Intoxicating Cannabinoid Hemp And Marijuana” Bill Awaits the Governor’s Signature

Colorado Senate Bill 23-271, if signed by the Governor, establishes a comprehensive framework for the sale of hemp-derived products. The new law would separate cannabinoids into three defined categories: non-intoxicating, potentially intoxicating, and intoxicating. With the exception for products manufactured for export, products containing “potentially intoxicating” and “intoxicating cannabinoids” will be designated as marijuana by default, with few exceptions. Hemp products are prohibited from being marketed as intoxicating.

Additionally, all cannabinoids produced from the cannabis plant, regardless of intoxication profile, would be subject to the special marijuana tax if they are used as an ingredient in a marijuana product. Limits will be placed on THC content, and chemical modification, synthesis, or conversion of cannabinoids are not authorized, but may be permitted in rule by the agencies. Hemp manufacturers registered under the safe harbor program can manufacture intoxicating and potentially intoxicating cannabinoids, but those products cannot be sold in Colorado. Contact us if you would like more information about the bill and how it impacts the industry.

Delaware

Delaware: Hemp is No Longer a Controlled Substance Under Delaware’s New Adult-Use Bill

On April 23, 2023, Delaware House Bill 1 went into effect, legalizing adult-use cannabis. House Bill 1 excludes “Industrial Hemp” from the definition of marijuana. Prior to this law change, Delaware’s definition of marijuana did not exclude industrial hemp, meaning technically possession of hemp was considered possession of a controlled substance. This was likely an oversight but did present some risk that hemp or hemp products could be considered marijuana. Due to this exclusion, Delaware is now considered a category 3 state, meaning “state law does not regulate retail sales of CBD products.”

Florida

Florida Bill Proposes Sweeping Changes to State’s Hemp Laws

Florida Senate Bill 1676 has passed and is headed to the Governor for signature. Should the Governor sign the bill as is, it amends the hemp laws in several ways. Some of the key provisions of the new law are as follows:

Adds a THC standard for hemp extract of 0.3% total delta-9 THC on a wet-weight basis.
Requires that hemp extract be processed in a facility that holds a permit issued by a health or food safety regulatory authority.
Requires child-resistant packaging for products containing hemp extract.
Products intended for ingestion or inhalation that contain hemp extract may only be sold to persons 21 and older

Maryland

Maryland Puts THC Limits on Hemp Products

Maryland’s adult-use cannabis bill, House Bill 556, passed on May 3, 2023, sets a cap on THC limits by providing that a product intended for ingestion or inhalation that contains more than 0.5 milligrams of THC per serving or 2.5 milligrams of THC per package may only be sold in the regulated cannabis market. A product that meets the definition of “tincture” that has a ratio of CBD to THC of at least 15:1 and 2.5 milligrams or less of THC per serving and 100 milligrams or less of THC per package, may be sold outside the regulated cannabis market.

Tennessee

Tennessee Establishes Regulatory Framework for Hemp Products

SB-378, signed by the governor on May 11, 2023, and effective January 1, 2024 (except as noted below), creates a regulatory framework for the manufacture and sale of “hemp-derived cannabinoids,” which are defined to include cannabinoids and their isomers, other than delta-9, in a concentration of more than 0.1% or a hemp product containing delta-9 THC (of not more than 0.3%), and includes, but is not limited to delta-8, delta-10, HHC, THCo, THCp, THCv, and THCa. “Hemp-derived cannabinoid” excludes topicals, hemp-feed products, and the following cannabinoids and their acid precursors: CBC, CBCv; CBT, CBL, CBD, CBD, CBDp; CBE, CBG, CBGv/CBGm; CBN, CBV.

Some of the key requirements of the new law that are applicable to hemp-derived cannabinoids are as follows:

Requires manufacturers and retailers of hemp-derived cannabinoid products to obtain a license no later than Jan. 1., 2024;
Sets the maximum cannabinoid content limit per serving for ingestible products to 25 mgs, in the aggregate, of one (1) or more hemp-derived cannabinoids;
Requires testing of hemp-derived cannabinoid products and require that a label’s expiration date be no more than one (1) year from the date of the laboratory testing report;
Requires purchasers of hemp-derived cannabinoid products to be 21 or older (would go into effect July 1, 2023);
Requires hemp-derived cannabinoid products to be packaging in child-resistant packaging.

Washington

Washington Requires All THC Products to be Regulated As Cannabis Products

Washington’s Senate Bill 5367, signed by the Governor on May 9, and effective July 23, 2023, requires all products, except topicals, with any amount of THC to be regulated as cannabis products. The new also prohibits the manufacture and sale of any synthetically derived, or completely synthetic, cannabinoid.

General Updates

DEA Is Being Sued By A Former Agent Who Was ‘Wrongfully Terminated’ Over CBD Use

A former Drug Enforcement Administration (DEA) officer is taking the agency to federal court after being fired for testing positive for THC that he attributes to legal hemp-derived CBD oil he took for pain relief. Read this article from Marijuana Moment for more.

Pennsylvania Industrial Hemp Engine Development Project Funded by National Science Foundation

The Pennsylvania Industrial Hemp Engine Development Project is a statewide strategic planning effort designed to build a plant and place-based economic ecosystem grounded in innovation, education, inclusion, and translation of technology to industrial applications. This project is being funded by the National Science Foundation (NSF) through a $1 million NSF Engines Development Award. Learn more about this project and its goals.

International Updates

FIHO Calls for Common Language on Hemp

The recently formed Federation of International Hemp Organisations (FIHO) has issued a position paper on hemp terminology in an attempt to distinguish it from other forms of cannabis. The FIHO said its recommendations would help individual jurisdictions develop regulations that recognize country-by-country differences, but clearly distinguish marijuana from hemp.

Czech Republic Reverses Plan to Ban CBD

Earlier this month, Czechia’s State Agricultural and Food Inspection (SZPI) was preparing to prohibit the marketing of foods containing CBD along with other cannabinoids obtained from hemp, citing food safety concerns. Those plans have come to a halt - read more here

Hemp Events

June 14 | Cannabis Business in Minnesota: An Entrepreneur’s Guide to the New Industry

Minnesota’s hemp-derived edibles law resulted in a boom for the state’s hemp industry, and now the state is about to legalize cannabis for adult-use. In anticipation of this emerging industry, Vicente LLP is hosting a can’t-miss event for those interested in jumping into this new market. Join us for an afternoon of education and networking with nationally recognized cannabis industry leaders, government officials, business owners and entrepreneurs on Wednesday, June 14, 2023 at Surly Brewing Co. in Minneapolis. Learn more and register here!

June 15 | Intoxicating and Synthetic Hemp Regulations: State Legislative Session Updates and Federal Predictions  

In many states, intoxicating and synthetic hemp derived products have been the topic of debate during the 2023 legislative session. While numerous bills have been filed and some are now law, states have taken various approaches to regulating or prohibiting these products. In addition, the FDA and DEA have their eye on these products and DEA rulemaking is expected shortly.  

Watch this session with Vicente’s hemp team and regulators from Colorado and Vermont to learn more about state legislative changes and projections for future hemp product regulation at the state and federal level. Register here!