Delta-8 brouhaha creates marijuana opportunity in next federal Farm Bill

February 21, 2023 · MJ Biz Daily

If Congress can’t (or won’t) bundle marijuana reform with the F-35 fighter jet and nuclear submarines, why not food stamps and corn subsidies?

Among the pressing items on federal lawmakers’ 2023 to-do lists is renewing the Farm Bill.

Every five years, the sprawling, multipart, $428 billion monster that deals with nutrition and rural development as well as what American farmers grow and how they grow it is revamped.

And the 2018 Farm Bill that legalized hemp and triggered the boom in delta-8 THC and other intoxicating hemp-derived cannabinoids expires in September.

Federal marijuana prohibition means the American cannabis industry still exists separately from federal farm programs and the U.S. Department of Agriculture.

Despite this, and despite the many other loud and needy lobbies competing for attention, there’s a growing push in Washington DC for Congress to consider marijuana reform during Farm Bill discussions, according to multiple lobbyists and a federal lawmaker who spoke with MJBizDaily.

And the countrywide flood of widely available products containing intoxicating hemp-derived cannabinoids that the 2018 Farm Bill inadvertently unleashed is only part of the reason.

The Farm Bill “absolutely poses a path forward” for otherwise stymied federal marijuana reform, U.S. Rep. Earl Blumenauer, an Oregon Democrat, told MJBizDaily.

That could include the SAFE Banking Act, the bipartisan proposal to prohibit federal banking regulators from punishing financial institutions that do business with state-legal plant-touching marijuana businesses.

Skeptics will point out that past attempts to package marijuana reform measures with broader bills have failed.

December efforts to include the SAFE Banking Act in both an omnibus spending bill and the annual defense spending bill were thwarted by Senate Minority Leader Mitch McConnell and his caucus.

McConnell remains adamantly opposed to tucking marijuana-related provisions into broader bills, Capitol Hill observers say.

But by signing the Senate’s version of the 2018 Farm Bill into law with a hemp pen, McConnell also unwittingly tied himself to the cannabis industry.

It was that law that legalized hemp production nationwide and led to the ongoing product-safety and regulatory controversy posed by intoxicating hemp-derived cannabinoids.

Hemp producers and product makers have proved adaptable and nimble in discovering new intoxicating substances and packaging them into gummies, THCA smokable flower and other products.

Delta-8 and delta-9 concerns

State regulators and law enforcement officers say hemp-derived products are eluding restrictions and regulations and sickening users, including children.

“Impairing, high-potency delta-9 hemp products are in the Alaska marketplace,” Joan Wilson, Alaska’s top cannabis regulator, and Robert T. Carter, the state’s hemp-plan manager, wrote in an October letter to Gov. Mike Dunleavy.

“They are accessible to all Alaskans, including our youth.”

Concerns about hemp-derived delta-8 and delta-9 products is bipartisan.

On Feb. 9, Connecticut Attorney General William Tong mailed warning letters to vape shops and other retailers, advising them that any product with more than 0.3% THC “on a dry weight basis,” regardless of the source material, was illegal to sell without a state marijuana license.

To date, 14 states have banned delta-8 products outright.

But the market has proved adaptable, with new cannabinoids such as THC acetate ester, or THC-O, appearing alongside hemp-sourced delta-8.

And other federal agencies have declared it Congress’ job to clean up this mess.

In late January, the U.S. Food and Drug Administration announced that regulating CBD – another massive industry also created by McConnell’s Farm Bill – was not within its current powers and that a new regulatory framework is needed.

“The agency is prepared to work with Congress on this matter,” the FDA noted.

McConnell’s office did not respond to an MJBizDaily interview request for this story.

But some members of Congress as well as the public recognize that the minority leader bears responsibility for the delta-8 situation – and that the Farm Bill would be an appropriate place to fix it.

“We had a breakthrough in the 2018 Farm Bill, but it didn’t provide a regulatory framework” for intoxicating hemp-derived cannabinoids, Blumenauer said.

“There are real problems,” he added. “That is recognized.

“So I think that coming in and filling these gaps is something that shouldn’t be hopelessly controversial.”

A long, complicated process

The Farm Bill could also be a vehicle for SAFE Banking, Blumenauer added.

That legislation famously passed the Democrat-controlled U.S. House of Representatives in various forms seven times but failed to gain a hearing in the Senate.

A last-ditch push by Senate Majority Leader Chuck Schumer to tack SAFE Banking onto the National Defense Authorization Act failed in December after McConnell opposed it.

Schumer’s office did not respond to MJBizDaily messages seeking comment.

And it’s still unclear how much appetite new House Speaker Kevin McCarthy, a California Republican, will have for marijuana reform.

Crafting the Farm Bill is a lengthy process that generally takes most of a year. The bill technically expires at the end of September, which is the end of the federal fiscal year.

But negotiations can stretch into the following calendar year.

Though it will likely be summertime before substantive decisions are made, initial discussions are underway.

According to NPR, 80% of the Farm Bill funds nutrition programs such as Supplemental Nutrition Assistance Program (SNAP) benefits, also known as food stamps.

Along with clearer regulations governing intoxicating hemp-derived cannabinoids, U.S hemp producers are lobbying for an increase – from 0.3% to 1% – in the allowable THC content before a legal hemp plant becomes illegal “marijuana” under federal law.

“That will make farming cannabinoid hemp much more forgiving,” said Jim Higdon, a co-founder of Kentucky-based Cornbread Hemp, a company that markets CBD products.

“The amount of hemp that has to be destroyed is just ridiculous.”

‘Looking for clarity’

Higdon agreed the Farm Bill could be a likely vehicle for cannabis regulations, such as definitions that clearly state what novel cannabinoids are allowed and to what concentrations.

But “principally, we’re looking for clarity,” he said, including clear permission (or prohibition) on what compounds ambitious chemists are able to extract from hemp – and at what levels they can be included in products available on the marketplace.

One ongoing headache for companies dealing in hemp-derived products is what types of labeling and marketing pitches will trigger a warning letter from the FDA.

Products sold with medical claims – but without the requisite studies or science – appear to be one clear red line.

“We know why our customers are coming for CBD products and for what reasons, but we cannot message those reasons in marketing materials without risking an FDA letter,” Higdon said.

“That just has to stop.”

In a recent analysis of Congress’ starting position on the Farm Bill, Jonathan Coppess, an associate professor at the University of Illinois and director of the school’s Agriculture Policy Program, made no mention of hemp or intoxicating cannabinoid.

Instead, he noted that “much about a farm bill comes down to the politics between federal payments to farmers and federal payments to low-income individuals and households” via SNAP.

But in a twist, the public clamor and moral outrage over delta-8 might play into the hemp industry’s hands.

This also creates opportunity for cannabis at large.

“There was no thought at the time (in 2018) that intoxicating hemp-derived cannabinoids would be permissible in any way in the marketplace, and now an entire kind of gray-market product category has emerged,” said Michael Bronstein, president of the American Trade Association for Cannabis and Hemp, one of the DC lobbies.

“Every day now, I’m reading in a mainstream publication about delta-8 products being sold in gas stations or smoke shops.

“It’s created a lot of regulatory issues that need to be addressed in the upcoming Farm Bill.” (Full Story)

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