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Arguments over the intent of Congress in legalizing hemp in 2018 may be academic at this point since leading Democrats recently moved to end the prohibition on marijuana. Still, the proliferation of delta-8 THC products could undermine efforts to create a lawful pathway for CBD in conventional food and supplements, a prominent hemp lawyer said, citing fears of some congressional staff.
July 23, 2021
Delta-8 THC products are in high demand in the U.S., but several attorneys who counsel businesses in the hemp industry said in interviews that members of Congress didn’t intend to legalize psychoactive or intoxicating compounds in the 2018 Farm Bill.
“People can make arguments on either side as to whether the sale of delta-8 violates the letter of federal law, but it definitely violates the spirit,” said Jonathan Miller, general counsel of the U.S. Hemp Roundtable.
“When the Farm Bill was passed, it was very clear that Congress was making a distinction between intoxicating marijuana and nonintoxicating hemp, and they wanted to draw a line whereby intoxicating marijuana would be illegal at the federal level while nonintoxicating hemp would be legal,” Miller said.
The U.S. Hemp Roundtable strongly believes “products should not be marketed under the guise of the hemp name under their intoxicating value,” he added. “That doesn’t mean delta-8 cannot be sold.”
Rend Al-Mondhiry is a partner with the law firm Amin Talati Wasserman LLP and FDA counsel for the U.S. Hemp Roundtable. She said she didn’t believe it was Sen. Mitch McConnell’s (R-Kentucky) intent to create “a loophole where potentially intoxicating products could be legally sold.”
Industry largely credited McConnell—majority leader of the U.S. Senate under the Trump administration—for spearheading efforts to remove hemp from the Controlled Substances Act (CSA). The 2018 Farm Bill defines hemp as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”
Unlike hemp, marijuana typically contains large quantities of delta-9 THC. State-regulated cannabis dispensaries have potency limits on marijuana, yet the likes of gas stations may be selling more powerful delta-8 THC products than legal marijuana, observed Garrett Graff, a partner with the law firm Moye White, who focuses on hemp and broader cannabis issues.
Graff said he questions “rhetorically or facetiously” whether McConnell would testify that was his intent.
Press officers for McConnell did not respond to requests for comment regarding delta-8 THC.
Congress’ intent in the 2018 Farm Bill is irrelevant since the law is clear, allowing for the sale of delta-8 THC, according to Rod Kight, an attorney representing the Hemp Industries Association (HIA). In defining hemp, Congress specifically carved out delta-9 THC, yet it could have prohibited THC more generally, Kight said.
He also suggested the conversation over Congress’ intent is dated. “Here we are looking federally to legalize all forms of cannabis, which is probably going to happen during the Biden administration, and yet we’re going to get hung up on what Congress may or may not have intended several years ago,” Kight said in a June 16 interview. “[It] just seems kind of ridiculous.”
To Kight’s point, last week Sen. Majority Leader Chuck Schumer (D-New York) announced draft legislation that would end the federal ban on marijuana. The draft was co-sponsored by Senate Finance Committee Chairman Ron Wyden (D-Oregon) and Sen. Cory Booker (D-New Jersey).
“This is monumental because at long last, we are taking steps in the Senate to right the wrongs of the failed war on drugs,” Schumer said during a July 14 press conference while being flanked by Booker and Wyden.
Schumer said he would use his “clout as majority leader” to make it a priority in the Senate to legalize marijuana.
“As my colleagues and I have said before, the war on drugs has really been a war on people, particularly people of color,” Schumer added. “The Cannabis Administration and Opportunity Act would help put an end to the unfair targeting and treatment of communities of color by removing cannabis from the federal list of controlled substances.”
Wyden also has been a champion of the hemp industry. Earlier this year, he and two other senators introduced a bill to legalize CBD and other hemp-derived ingredients in dietary supplements and conventional food and beverages.
Asked in June whether the sale of delta-8 THC products is compatible with the intent and plain language of the 2018 Farm Bill, Wyden spokeswoman Nicole L'Esperance responded, “With nearly half of Americans with legal access to adult-use cannabis at the local level and more and more gaining access, our view is re-litigating the criminalization of certain hemp derivatives isn't helpful or realistic.”
“What we need is to establish a clear federal legal framework to apply reasonable FDA regulations to all hemp and cannabis-derived products to clear up any gray area,” L'Esperance said via email.
She added at the time that her boss’s “forthcoming discussion draft with Booker and Schumer to end cannabis prohibition will have robust proposals to do just that.”
The draft bill unveiled by the three senators also would create a legal pathway for CBD in supplements.
But members of Congress, especially conservative Republicans, may not be ready to legalize marijuana across the country.
Meantime, some congressional staff are “angry” and worried that the marketing of delta-8 products “might undermine our efforts to pass hemp CBD legislation because of fears that it’s just going to open the door to intoxicating products,” Miller said. “We want to make clear to our supporters in Congress that we recognize there is a distinction, and we’d like to see Congress and the states do that as well.”
Associate editorial director, Natural Products Insider, Informa Markets Health and Nutrition
Josh Long directs the online news, feature and op-ed coverage at Natural Products Insider, which targets the health and wellness industry. He has been reporting on developments in the dietary supplement industry for over a decade, with a special focus on regulatory issues, including at the Food and Drug Administration.
Josh majored in journalism and graduated from Arizona State University the same year ‘Jake the Snake’ Plummer led the Sun Devils to the Rose Bowl against the Ohio State Buckeyes. He also holds a J.D. from the University of Wyoming College of Law, was admitted in 2008 to practice law in the state of Colorado and spent a year clerking for a state district court judge.
Over more than a quarter century, he’s written on various topics for newspapers and business-to-business publications – from the Yavapai in Arizona and a controversial plan for a nuclear-waste incinerator in Idaho to nuanced issues, including FDA enforcement of the Dietary Supplement Health and Education Act of 1994 (DSHEA).
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