Vicente Sederberg LLP Hemp Update: June 2021
Jun 10, 2021
Sign up for Hemp and Cannabinoid Industry updates from Vicente Sederberg LLP
Federal Updates
PACT Act Update: USPS Delays Ban on Mailing Vape Products
Recent amendments to the PACT Act required USPS to issue regulations putting into effect the new ban on USPS mailing vape products from retailers to consumers, but the agency is delaying the ban. USPS needs more time to review the changes needed to implement the final rule ordered by Congress. “Mailers should be prepared for implementation upon publication anytime,” a USPS spokesman told Hemp Industry Daily. Read more about the PACT Act and the shipping ban in this article.
Bipartisan Legislation Introduced in U.S. Senate Would Create Regulatory Pathways for Use of Hemp-Derived CBD in Dietary Supplements and Conventional Food
Senators Ron Wyden and Jeff Merkley (D-OR) and Senator Rand Paul (R-KY) introduced bipartisan legislation, S. 1698, on May 19 that would protect public health by providing legal clarity in the hemp and hemp-derived cannabidiol (CBD) product marketplace. The Hemp Access and Consumer Safety Act of 2021 would amend the Federal Food, Drug, and Cosmetic Act (FD&CA) by establishing exceptions to certain statutory restrictions that have prevented the U.S. Food and Drug Administration (FDA) from setting clear regulatory frameworks for hemp and hemp-derived CBD that would assure consumer access. The bill would allow hemp-derived ingredients to be included in both food and dietary supplement products. Learn more and support the legislation via the U.S. Hemp Roundtable action page.
Companies Appeal Dismissal in Case Contesting DEA Hemp Rule
Hemp Industries Association (HIA) and RE Botanicals, Inc. appealed the ruling in a lawsuit they had filed against the Drug Enforcement Administration (DEA) regarding DEA’s position that intermediary and waste hemp materials are schedule 1 controlled substances The appeal will be heard by the D.C. Circuit. Watch this discussion with Shane Pennington and Rod Kight to learn more.
USDA Using Hemp Oil to Make ‘Cosmeceuticals’
As it regulates hemp production, the U.S. Department of Agriculture (USDA) is simultaneously researching and developing end uses for the crop. The USDA’s Agricultural Research Service and Peoria, Ill.-based Midwest Bioprocessing Center are working together to expand the market for hemp seed oil into new cosmetic ingredients. Read more.
FMCSA Issues Reminder to Commercial Drivers Regarding CBD Use
The U.S. Department of Transportation Federal Motor Carrier Safety Administration (FMCSA) issued an updated notice reminding commercial drivers to exercise caution when considering the use of hemp and cannabidiol products. Read more.
General Updates
Delta-8 THC A ‘Market Response’ to Lack of FDA Guidance on CBD, Hemp Industry Says
VS Hemp & Cannabinoids Chair Shawn Hauser recently gave her take: “Given the intoxicating nature of this particular cannabinoid and that these products have not been established as lawful and safe ingredients under (the Food, Drug and Cosmetics Act), it is likely most appropriately regulated under state marijuana regulatory regimes where clear quality, safety and marketing standards are applied and enforced.” Read the full article from Hemp Industry Daily.
How Long Will Delta-8 Remain Legal?
Andrea Golan was recently tapped for her knowledge on the complicated regulatory landscape surrounding Delta-8 THC, and some tips for retailers and consumers in this article from Leafly. “Some key players in the hemp industry see the potential of delta-8 and other minor cannabinoids derived from hemp. Those stakeholders may be more likely to bring a legal challenge of state or federal law to obtain a ruling on the legal status of hemp-derived delta-8 THC.”
State Updates
Delta-8 State Update
Laws and regulations governing the manufacture and sale of Delta-8 continue to develop in a number of states, including Colorado, Kentucky, Illinois, Iowa, Louisiana, Massachusetts, Michigan, Oklahoma, Oregon, Nevada, New York, North Dakota, North Carolina, Hawaii, Rhode Island, Vermont, and Washington.
As these states are grappling with Delta-8, industry organizations are also examining this issue. The United States Cannabis Council released a report supporting prompt action from regulators, law enforcement, and the cannabis community to stem the Delta-8 THC crisis.
Colorado
On June 1, Colorado submitted a revised Hemp Management Plan to the USDA. The revised plan builds upon the foundation of work and aligns to the Final Rule. The state expects the USDA to approve the State Plan in the coming months in order to develop and begin implementing starting January 2022.
Massachusetts
The Massachusetts Cannabis Control Commission recently voted to issue Guidance for the Retail Sale of Hemp to clarify requirements and restrictions on the retail sale of certain types of hemp products by licensed adult-use marijuana retailers to eligible consumers. VS attorneys Michelle Bodian and David Ullian answer some burning questions, including what products can and can’t be sold, in the VS Insight, “Massachusetts Cannabis Retailers Can Now Sell Hemp Products: What Retailers Need to Know.”
Michigan
Michigan’s Department of Agriculture and Rural Development’s Food and Dairy Division released guidance on May 3 clarifying rules around using hempseeds and extracts, including CBD, in food and dairy products. Read the guidance here.
Minnesota
USDA approved the state of Minnesota’s revised hemp production plan on May 10.
New York
New York state now expressly prohibits Delta-8 THC and other THC isomers derived from hemp, but they did make a concession to hemp producers in an updated batch of hemp regulations, including a modification to limits on smokable hemp and removing a requirement that all cannabinoids over 0.05% be listed on product labels. The state will keep its proposed ban on hemp prerolls, cigarettes and any “flower product labeled or advertised for the purpose of smoking,” but will allow the sale of hemp flower, so long as the flower is not branded as an item for smoking. Read this article for insights from VS attorney Michelle Bodian.
Wisconsin
Beginning May 3, an emergency rule went into effect for Wisconsin’s Hemp Research Program. The rule adds retest and remediation options for failed lots and caps the number of negligent violations to one per year, consistent with federal law in the USDA's March 22, 2021, final rule and as required under state law. Read the bulletin here.
USDA State & Tribal Hemp Plan Approvals
View the USDA approval status of each state and tribe hemp production plan here.
International Updates
VS Delivers Memo to International Narcotics Control Board Regarding Draft Guidelines on Control Requirements for Medical and Scientific Cannabis
On March 24, 2021, the International Narcotics Control Board (INCB) held its First Intergovernmental Meeting on the third draft of the INCB’s Guidelines on “International Drug Control Requirements for the Cultivation, Manufacture, and Utilisation of Cannabis for Medical and Scientific Purposes.” VS submitted a memo to INCB to support the consultative process in finalizing the guidelines. Read the memo here.
European Commission Adds CBG as Legal Ingredient for Cosmetics, Skin Care
European health and beauty product manufacturers can now safely use hemp-derived cannabigerol or CBG in their cosmetics and skin care lines with approval from a key market regulator for trade in the European Union. Read this article from Hemp Industry Daily for more details.
Events
CRN Legal, Regulatory, and Compliance Forum on Dietary Supplements | June 8-10, 2021
On June 9, VS partner Shawn Hauser will present “The Path Forward for CBD: Exploring the Journey to Legalize Hemp-Derived CBD” at the Council for Responsible Nutrition’s Legal, Regulatory, and Compliance Forum on Dietary Supplements. Click here to learn more and register.
Webinar Replay | Minor Cannabinoids: Exploring the Science, Legality, and Opportunities
VS attorneys Shawn Hauser and Andrea Golan recently hosted a lively discussion on minor cannabinoids with Darwin Millard (The Spock of Cannabis), Ron Fazio (Hemp Synergistics), and Will Woodlee (Kleinfeld, Kaplan & Becker).
Webinar Replay | Hemp Industry Litigation in Response to DEA Overreach
VS attorney Shane Pennington joined Rod Kight for this webinar hosted by the Hemp Industries Association. During the session, they discussed the HIA v. DEA IV litigation and how this important casework can impact the hemp industries.
Podcast | Delta-8 – The Legal Landscape
VS attorney Shane Pennington joined attorney Marc Hauser to discuss the legal and regulatory landscape of delta-8 THC in this podcast hosted by Premium CBD Labs
Contact our hemp team with any questions or licensing needs!