CHICAGO — With the U.S. Food and Drug Administration (FDA) making slow progress on any regulatory pathway for ingestible cannabidiol (CBD) products, most important regulatory action for retailers is happening at the state level—at least until the federal government does something big.
Here is a recap of the state and federal hemp and CBD regulations from recent weeks ...
California Approves Ingestibles
Despite being at the forefront of the medical and recreational cannabis movement, California had been one of the toughest states for mainstream retailers to sell CBD products. That changed on Oct. 6, when Gov. Gavin Newsom signed Assembly Bill 45 which, among many things, allows the sale of non-intoxicating cannabinoids, including CBD, as dietary supplements and food ingredients.
Before mainstream retailers can legally start selling ingestible CBD products in their stores, the California Department of Public Health needs to develop safety regulations, which could take several months.
In addition to ingestibles, AB45 laid groundwork for the sale of smokeable hemp once lawmakers establish a tax program. It also defined tetrahydrocannabinol (THC) to include THCA and any THC including Delta-8 THC, Delta-9 THC and Delta-10 THC, making California the 19th state to restrict or ban Delta-8.
Texas Restricts Delta-8
As of Oct. 15, Texas became the 20th state to restrict or ban Delta-8 THC. On that date, the Texas Department of State Health Services (DSHS) made an update to its website stating “all other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I Controlled Substances.” The Texas Hemp Growers told Fox 7 Austin that the state’s current Delta-8 market is worth almost $50 million.
At least one wholesaler has filed lawsuit to stop the ban, arguing that the DSHS improperly changed the state’s hemp policy. On Nov. 5, a judge approved a request to temporarily keep the state from enforcing the ban while the lawsuit plays out.
USPS Extends ENDS Ban to CBD
In a move that may benefit brick-and-mortar retailers, the U.S. Post Office (USPS) released its final rule on mailing vaping products. The rule announced Oct. 20 states that, because of the Preventing Online Sales of E-Cigarettes to Children Act (POSECCA) mandate from Congress, even vaping devices designed for legal hemp substances cannot be shipped through the USPS.
The USPS asserted that cannabis-containing vaping products fall within the scope of what Congress moved to ban in POSECCA. The bill defined “electronic nicotine delivery systems,” or ENDS, as “any electronic device that, through an aerosolized solution, delivers nicotine, flavor or any other substance to the user inhaling from the device.” The rule noted that while hemp and CBD products containing up to 0.3% THC are federally legal and can generally be mailed through USPS, that’s only “to the extent that they are not incorporated into an ENDS product or function as a component of one.”
Increasing the 0.3% Threshold
In late September, Rep. Chellie Pingree (D-Maine) became the latest legislator to call for an increase in the 0.3% THC threshold set by the 2018 Farm Bill. While Pingree’s proposal—the Hemp Advancement Act—has not yet been released, stakeholders of the U.S. Hemp Roundtable were given a preview of some of the bill’s key provisions, according to a report in Marijuana Moment. The website reports that the draft bill includes the 0.3% increase and allows individuals with felony drug convictions to participate in the hemp market.
Specifically, the bill would increase the THC threshold during the production process, not the final product, therefore complying with the Farm Bill but providing relief to hemp and CBD-growers and processors who have to destroy crops that fall above that 0.3% limit. This could potentially lower the raw cost of hemp and CBD across the board.
The THC limit has been the subject of previous legislative efforts, as well. Sen. Rand Paul (R-Ky.) filed similar legislation in March, titled the Hemp Economic Mobilization Plan (HEMP) Act, which would more than triple the amount of allowable THC to 1%. Paul’s bill has yet to receive a vote in the Senate.