Vicente LLP Hemp Update: December 2023

Dec 14, 2023

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New Hemp & Cannabinoid Compliance Guide Chart!

Hemp Cannabinoid Legality Guide: Your 50-State Roadmap to the Ever-Changing Legal Landscape of Hemp Cannabinoids

The new Hemp Cannabinoid Legality Guide is a more detailed guide that replaces our previous Intoxicating and Synthetic Cannabinoid Compliance Guide.

This new chart is a state-by-state chart providing an overview and detailed explanation of the legality of hemp-derived cannabinoids (Delta-8 THC, Delta-9 THC, CBN, HHC), representative of the four main cannabinoid groups (natural, synthetic, semi-synthetic intoxicating, semi-synthetic non-intoxicating). This chart identifies in both “yes/no/silent” format and, in detail, product type cannabinoid limits (such as ratio or limits per serving or per container), and age restrictions. This guide also categorizes states according to a color-coded matrix.

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Federal Updates

FDA Delays Enforcement of MOCRA Deadlines for Facility Registration and Product Listing to July 1, 2024

As a reminder, the Modernization of Cosmetics Act of 2022 (“MOCRA”) made some significant changes to cosmetic regulations. Cosmetic manufacturing and processing facilities were required to register their facilities with FDA (unless a small business exemption is applicable) by December 29, 2023, one year after its enactment. However, on November 8, 2023, FDA announced it is delaying enforcement of these requirements for six months to July 1, 2024.

Sales Of Hemp-Derived Cannabinoids Like CBD Outpace Legal Marijuana And Are On Par With Craft Beer, Report Finds

A recent report revealed that the US hemp industry, even without strong federal regulations, surpassed all legal marijuana markets in terms of size in 2022. Notably, sales of hemp-derived cannabinoids, such as CBD, reached a value approximately equal to the national sales of craft beer, sitting at $28.4 billion.

Letting People Legally Buy CBD Significantly Reduces Opioid Prescription Rates, New Study Shows

This article by Marijuana Moment discusses a study that investigated the impact of legal access to cannabidiol (CBD) on opioid prescription rates. The study found that in states with legal CBD access through dispensaries, opioid prescription rates were reduced 6.6% to 8.1%. However, the study also found that state laws limiting access to CBD by requiring identification or patient registration significantly reduce the impact of legalization on lowering opioid prescription rates.

Slow Pace of Farm Bill Could Further Hamper Hemp Industry’s Recovery

The slow progress in enacting the 2023 Farm Bill poses a significant threat to the hemp industry's ongoing recovery after two years of historically low production. The current Farm Bill, passed in 2018, legalized hemp and hemp cultivation but resulted in a number of industry pain points, including those unanticipated such as the proliferation of downstream hemp derivatives known to cause intoxicating effects. Other industry goals include a pathway for the sale of hemp cannabinoids in FDA-regulated products, clarification of legal THC limits, and funding for research and development.

Hemp Research Confirms Cannabinoid Pesticide Potential

Recent research revealed the potential of hemp cannabinoids to act as natural pesticides. The study investigated the efficacy of various hemp extracts against different pests, including spider mites, aphids, and whiteflies. Further analysis revealed that the cannabinoids present in hemp, such as CBD, were primarily responsible for the insecticidal effects.

USDA is Giving Some Farmers an Ultimatum: Grow Hemp or Marijuana

The U.S. Department of Agriculture (USDA) is forcing farmers to choose between growing hemp and marijuana despite the 2018 Farm Bill legalizing hemp at the federal level. This ultimatum stems from the USDA's interpretation of federal law, which considers hemp and marijuana to be distinct plants despite their close biological relationship. The USDA has been revoking hemp licenses for farmers who also cultivate marijuana, even in states where marijuana is legal for recreational or medical use. Read more on POLITICO.

FDA Issues Warning Letter to a Hemp Product Company for Violating the Federal Food, Drug, and Cosmetic Act

FDA issued a warning letter to GCHNC LLC dba Hemp XR/Gate City Hemp dba Hemp XR/Allaziya Enterprises, LLC dba Hemp XR, informing it that delta-8 THC and CBD are unapproved food additives rendering their products adulterated in violation of the Federal Food, Drug, and Cosmetic Act (FD&C Act). FDA also noted that the products violate the FD&C Act because CBD is an active ingredient in the FDA-approved drug Epidiolex. Read more.

FDA Issues Warning Letter to Discover Health, LLC for Unlawful Marketing of CBD Products

FDA also issued a warning letter in November to Discover Health, LLC for illegally marketing and distributing products containing CBD, CBG, HHC, and delta-8 THC ingredients. The letter outlines several violations of the FD&C Act and product concerns including:

Unapproved claims: Discover Health represented its CBD products as effective in treating or preventing diseases, including cancer, Alzheimer's disease, and autoimmune disorders. The FDA stressed that "CBD products are not approved by the FDA to treat any disease."
Unapproved new drugs: Certain Discover Health products are considered unapproved new drugs because they are marketed as intended for the diagnosis, cure, mitigation, treatment, or prevention of disease but they have not undergone the FDA drug approval process.
Misbranded products: Several products are misbranded, meaning their labeling is false or misleading, including claims about their intended use and potential effects.
Adulterated products: Active CBD Oil Infused Coffee, Active CBD Oil Gummies, CBD Living Water, and Strain Snobs™ delta-8 Plant-Based Gummies are adulterated products because they contain an unsafe food additives.

State Updates

Georgia

The Georgia Court of Appeals ruled that hemp-derived cannabinoids such as delta-8 and delta-10 THC are not classified as controlled substances under state law. This decision follows a crackdown on hemp-derived THC products in Georgia, which included a raid on retailer Elements Distribution in 2022. Read more on MJBizDaily.

Minnesota

Minnesota's new adult-use marijuana law may have unintentionally allowed hemp cultivators to sell flower products with THC levels exceeding the legal limit of 0.3%, potentially giving them a market advantage before legal cannabis sales begin in 2025. Regulatory confusion exists due to the Office of Medical Cannabis only overseeing processed hemp products, while the Office of Cannabis Management lacks authority until retail licenses are issued. Read more.

Ohio

Ohio voters overwhelmingly approved the legalization of recreational marijuana, opening the door to a multibillion-dollar market in the state. The legalization of adult-use cannabis in Ohio is expected to generate billions in sales within the first few years. Although Republican lawmakers may attempt to alter or repeal the initiative, bipartisan support suggests long-term momentum for the industry.

Texas

Despite Texas legalizing industrial hemp in 2018, inconsistencies surrounding the legality of hemp-derived products led to a recent police raid on Venom Vapors, a Killeen hemp shop. While owner Kyle Brown asserts his products comply with state law and provided certificates of analysis as proof, authorities confiscated hemp products and other items valued in excess of $36,000.

Virginia

A federal judge in Virginia refused to block a new state law that restricts the sale of hemp-derived products, including a ban on intoxicating products containing delta-8 THC. The new restrictions, which went into effect on July 1, 2023, include a 0.3% THC limit for all hemp-derived products, along with a CBD-THC ratio of at least 25-to-1. These regulations effectively render nearly all intoxicating delta-8 THC products illegal.

International Updates

Proposed Law in Czech Republic Would Put Tight Restrictions on CBD

A proposed law in the Czech Republic would restrict the sale of CBD to specialized stores. The proposed law would require retailers to obtain licenses from the State Institute for Drug Control (SÚKL). The proposed law would also ban the advertising of CBD in print, online and television and classify CBD as a “new psychoactive substance.” Read more.

Events

January 10 | Harmony Nosara Retreat

On January 10, 2024, Vicente partners Shawn Hauser, Sally Kent Peebles and Joshua Kappel are slated provide a high-level overview global psychedelics law and policy during a psychedelics retreat hosted by Harmony Nosara. More information to come.

Save The Date | Federal Cannabis Rescheduling Denver Event

Following the anticipated announcement from the DEA regarding the rescheduling of cannabis from a Schedule I drug to Schedule III, Vicente LLP will be hosting an exclusive educational event on all things federal scheduling reform. Stay tuned!

Webinar Replay | Intoxicating and Synthetic Hemp Regulations: State Legislative Session Updates and Federal Predictions

Watch this webinar replay with Vicente LLP'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 levels.