The Push for Hemp-Derived Cannabinoid Regulation: A Look at the Latest Developments

As the debate over cannabis legalization continues to evolve, a new front has opened up regarding the regulation of hemp-derived cannabinoids.

Recent legislative and regulatory actions highlight the growing complexity of cannabis laws in the United States. Two significant developments have recently come to light: the push for a ban on certain hemp-derived cannabinoids in the upcoming Farm Bill and the Drug Enforcement Administration's (DEA) stance on tetrahydrocannabinolic acid (THCA).

Legislative Push for Hemp-Derived Cannabinoid Ban

An amendment to the 2018 Farm Bill introduced by U.S. Representative Mary Miller (R-IL), aims to make cannabinoids such as delta-8 THC, delta-10 THC, hexahydrocannabinol (HHC), and tetrahydrocannabinolic acid (THCA) illegal.

Hemp-derived cannabinoids have gained popularity due to their availability and legal status under the 2018 Farm Bill, which legalized hemp and its derivatives as long as they contain less than 0.3% delta-9 THC. However, the psychoactive effects of cannabinoids like delta-8 and delta-10 THC have raised concerns as these synthesized substances exist in a regulatory gray area.

Jonathan Miller, General Counsel for The U.S. Hemp Roundtable, warned that the amendment would lead to the federal ban of “all ingestible hemp products with any level of THC.” He further explained, “By federally banning all ingestible hemp products with any quantifiable level of THC, the Mary Miller Amendment would result in federal prohibition of 90-95% of all hemp products on the market, even a large majority of popular, non-intoxicating CBD products that naturally contain trace, non-intoxicating amounts of THC in them.”

Adding to the complexity, the DEA recently clarified its position on THCA. The agency stated that THCA does not meet the definition of legal hemp under federal law. To meet the federal definition of hemp under the 2018 Farm Bill, a cannabis product must contain less than 0.3 percent delta-9 THC. In a new letter clarifying that limit, a top DEA official said the threshold includes not only delta-9 THC itself but also the related cannabinoid THCA, which is converted into delta-9 THC when heated—a process known as decarboxylation.

“In regards to THCA, Congress has directed that, when determining whether a substance constitutes hemp, the delta-9 THC concentration is to be tested ‘using post-decarboxylation or other similarly reliable methods,'” says the letter, sent earlier this month by Terrence Boos, chief of DEA’s drug and chemical evaluation section. “The ‘decarboxylation’ process converts delta-9-THCA to delta-9-THC,” Boos continued. “Thus, for the purposes of enforcing the hemp definition, the delta-9 THC level must account for any delta-9 THCA.”

Accordingly, Boos concluded, “cannabis-derived THCA does not meet the definition of hemp under the CSA, because upon conversion for identification purposes as required by Congress, it is equivalent to delta-9-THC.”

The proposed legislative changes and the DEA's stance leave many thousands of businesses future unclear. As Jonathan Miller put it, “The redefinition of hemp to include a calculation of THCA would wreak havoc in the fiber and grain markets… killing tens of thousands of agriculture and retail jobs, and denying access to popular products that Americans count on for their health and wellness."

The DEA's letter clarifying the status of THCA raises the stakes. Their stated interpretation could lead to revitalized enforcement actions and disrupt the livelihoods of farmers and producers who are in compliance with current laws.

The ongoing debates and regulatory actions surrounding hemp-derived cannabinoids underscore the complexity of cannabis legislation in the United States. As lawmakers and regulators navigate these issues, the outcomes will have far-reaching implications for consumers, businesses, and the broader cannabis industry. Whether through legislative amendments or agency interpretations, the push for clearer and more consistent regulations will likely continue as the industry evolves.

As always, extreme caution is advised when entering the THCA market due to the current legal ambiguities and potential regulatory changes. Oklahoma has been a total THC state since 2019, meaning the state does take into account post decarboxylation levels of THC. If you need help navigating the complexity of these state and federal hemp laws, book a consultation with our attorneys today. Our attorneys are cannabis competent and can help provide the clarity needed to keep you in compliance with the law.