State regulators urge federal authorities to close loophole allowing widespread access to delta-8

State regulators urge federal authorities to eliminate a loophole enabling the surge of delta-8.

Cannabis regulators from 45 states have urged the U.S. Congress to provide a clear definition of “hemp” as a crop grown exclusively for industrial or agricultural purposes. The purpose of this request is to close loopholes that have allowed the proliferation of unsafe synthetic THC products.

In a letter sent last week to the agriculture committees in the Senate and House of Representatives, the Cannabis Regulators Association (CANNRA) called for these changes to be included in the 2023 Farm Bill, which is expected to be passed by the end of this year.

These revisions are necessary to address the language in the 2018 Farm Bill, which legalized hemp on a federal level but did not account for synthetic THC products derived from hemp-derived CBD.

The loophole

“The Agriculture Improvement Act of 2018 (the 2018 Farm Bill) was primarily focused on agricultural commodities and non-intoxicating hemp products. However, the wording of the bill inadvertently created a thriving market for intoxicating cannabinoid products that fall within the definition of ‘hemp’,” the letter explains.

As the market for CBD extracts experienced a boom and subsequent crash following the passage of the 2018 Farm Bill, unscrupulous producers found a market for hemp-derived CBD among manufacturers of delta-8 and other highly potent formulations. These products quickly spread and are now widely available in common retail outlets, often disguised in packaging that resembles popular brands of candy and other treats intended for children.

“Due to the absence of federal clarity and regulation concerning finished cannabinoid products, state and territorial governments have been tasked with implementing measures to protect consumers,” states CANNRA in the letter. “However, these approaches vary across jurisdictions, resulting in a regulatory patchwork for hemp-derived products.

“Furthermore, enforcing state-based regulations becomes difficult when hemp-derived products are produced out of state and directly shipped to consumers across state lines. Therefore, federal regulatory engagement is necessary,” adds the association.

Clarifying THCA

The letter also suggests that the bill should provide clearer guidelines on hemp-derived THCA within the context of hemp. THCA serves as the precursor to delta-9 THC and can be converted into a synthetic form of delta-9 THC, the more commonly known form of THC found naturally in marijuana plants, when subjected to heat, combustion, or aerosolization. State cannabis programs measure total THC by combining THCA and THC.

The regulators also call for a federal agency to specify whether synthetic cannabinoids are permitted under the definition of hemp-derived cannabinoids, and to provide guidance on approved production and manufacturing practices.

Suggested definitions

CANNRA suggests the following definitions:

Hemp: “The term ‘hemp’ refers to the Cannabis sativa L. plant and any part of that plant, whether growing or not, with a total tetrahydrocannabinol (THC) concentration of no more than 0.3 percent in the plant on a dry weight basis. The term ‘hemp’ specifically excludes viable seeds from a Cannabis sativa L. plant that surpasses a total THC concentration of 0.3 percent in the plant on a dry weight basis.”

Hemp-derived cannabinoid products: “The term ‘hemp-derived cannabinoid products’ encompasses any product derived from hemp that is not the raw plant itself. These products are extracted, derived, infused, processed, or manufactured, and contain cannabinoids in any form. They are intended for human consumption or inhalation, and include, but are not limited to, combusted, aerosolized, or inhaled products, ingested products in any form, and topical products.”

CANNRA’s communication to Congress this month follows a letter sent by the association to key Congressional committees in July. This letter proposed the establishment of a national framework for all hemp-based cannabinoids, including CBD and any downstream products derived from CBD, as well as other minor cannabinoids found in industrial hemp.

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