This past weekend, EARTH Law Founding Principal Courtney Moran spoke at the Oregon State Bar Cannabis and Psychedelics Law Section Annual Conference, on recent developments in hemp law and policy at the state and national level. Courtney was joined by Alex J. Berger of Emerge Law Group, and Brittany L. Adikes from Ruskin Moscou Faltischek, P.C. to give an overview of the complex and rapidly evolving bodies of law regulating hemp and psilocibin.
The presentation began with an overview of the 2018 Farm Bill. Courtney Moran explained that the landmark piece of legislation defined hemp and removed it, along with certain THC derivatives, from the Controlled Substances Act; empowered the USDA with regulatory authority and established federal crop insurance for hemp growers. Ms. Moran noted that however, that the 2018 Farm Bill did not prevent states from enacting stricter regulations or clarify FDA authority regarding the marketing and processing of hemp-derived products.
After addressing the 2018 Farm Bill, the presentation turned to recent developments.
As 2018 Farm Bill approaches its expiration on September 30, 2024, discussions are underway about potential amendments to the bill. One such proposal is the Miller Amendment, which proposes a new definition of "hemp" as having a total THC concentration of 0.3%, including THCA, creates a new definition for “hemp derived cannabinoid products,” and would change the testing authority from the 2018 Farm Bill from delta-9 THC to a total THC (including THCA) test.
On September 25, 2024, Senator Ron Wyden introduced the Cannabinoid Safety and Regulation Act, which aims to establish a new framework for regulating cannabinoid products under the Federal Food, Drug, and Cosmetic Act and would establish the Center for Cannabinoid Products at FDA under DHHS.
The panel then shifted focus to the recent 4th Circuit case, Anderson v. Diamondback Investment Group, LLC, where the 4th Circuit upheld the definition of "hemp" as unambiguous under the 2018 Farm Bill, clarifying that all cannabis products below the 0.3% delta-9 THC threshold are considered legal hemp.
Next, the panelists provided an overview of state actions regarding hemp-derived cannabinoids, which have varied widely. The presentation noted that there has been a general trend of states introducing laws that more stringently regulate hemp products, citing the goal of keeping intoxicating hemp products out of the hands of children.
Brittany L. Adikes noted some proposals that would have restricted hemp-derived cannabinoids and intoxicants but were blocked. For example Governor Ron DeSantis vetoed a Florida bill that would have banned all hemp-derived products containing delta-8 and delta-10 THC; and Missouri Secretary of State Jay Ashcroft delayed an Executive Order that would regulate intoxicating hemp products as marijuana.
Other states successfully passed legislation to more heavily regulate hemp. The panelists noted several examples, including:
Oregon's ban on artificially derived cannabinoids;
California's Executive Order mandating that all hemp products intended for consumption be free of detectable total THC;
New Jersey's bill requiring marijuana licenses for businesses selling intoxicating hemp products; and
Wyoming's redefinition of hemp, which significantly curtails which hemp products are legal in the state.
The final segment of the presentation explored the legal nuances surrounding psilocybin. While psilocybin itself is federally illegal, psilocybin spores are not classified as controlled substances under federal law, which has led to confusion and a legal gray area. Alex J. Berger noted that at the state level, several states, including California and Idaho, have enacted laws making the sale of these spores illegal.
The regulatory landscape surrounding hemp-derived cannabinoids and psilocybin is rapidly evolving as changes are proposed at the federal and states pass legislation introducing new regulatory regimes. Stakeholders are advised to stay informed of these ongoing developments and seek advice where needed to successfully navigate this regulatory maze.
Have questions about federal or state-level regulations and laws concerning hemp or other agricultural products? Our expert team is happy to assist. Please email us at info@earthlawllc.com or give us a call at 541-632-3946.
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