Clarifying Congress’ intent for THC necessary for marijuana reform

(This contributed guest column is part of the cover package in the September-October issue of MJBizMagazine. To be considered as an MJBizDaily guest columnist, please submit your request here.)

The U.S. Congress is caught up in a political haze over what to do with hemp.

In 2018, Congress was told hemp laws were for “rope, not dope.”

But the industry’s hemp debate today is entirely about dope.

When Congress passed the Farm Bill in 2018, it was never lawmakers’ intent to legalize hemp products that could be manipulated to get consumers high.

That is, however, what happened.

The green wave of product development resulted in a rush of intoxicating “hemp” products that are sometimes harmful, often synthetically produced and nearly always unregulated.

Congress is now up to speed.

The argument that hemp intoxicants should remain unregulated under the Farm Bill so that a market Congress never intended can continue to operate is as contested as many other marijuana reform efforts in Washington, D.C.

It’s time to acknowledge where Congress is and seek common ground within the industry.

Not a legalization platform

Simply put, there is no interest among members of Congress to use the Farm Bill as a platform to legalize marijuana.

The Agriculture Improvement Act, or Farm Bill, is about agriculture, not finished consumer products.

Even those on the committees who support wider marijuana legalization don’t believe this is the way to do it.

Even worse, the industry is now in the position of arguing that the “derivatives” language in the Farm Bill justifies the entire crop of unregulated hemp intoxicants.

That would mean synthetic THC products have stronger legal footing than natural THC, an impossible position to defend.

Yet, this is precisely what those touting “Farm Bill-compliant” synthetic THC are asking the entire industry to do, further dragging both marijuana and hemp into a state of regulatory uncertainty.

Complicating things more, the committees responsible for the Farm Bill, which is updated every five years, lack the jurisdiction to establish the needed regulatory framework.

Congressional agriculture committees are in no position to give the Food and Drug Administration guidance or authority to include THC in consumer products, which is what we all are after.

Even if there were the will among members of Congress to create a pathway to legalize intoxicating cannabis and a willingness to use the Farm Bill to do it, the necessary regulatory framework cannot be created there.

There is no better example than CBD.

Six years after passage of the 2018 Farm Bill, Congress still hasn’t provided operators with a pathway to market, and CBD in food is considered unlawful.

Congress doesn’t want to act on cannabinoids it intentionally legalized in the Farm Bill, much less the intoxicants it didn’t.

Would closing hemp loophole change anything?

Taking a step back, it’s worth asking: What changes if Congress closes the so-called hemp loophole?

It has always been illegal under the Food, Drug and Cosmetics Act to add THC to food, ship it across state lines or sell it to consumers, whether the THC was derived from hemp or marijuana.

Claims that “Farm Bill-compliant” hemp intoxicants are “federally legal” have never been true.

Making these products truly legal – and not simply unenforced against – requires more than just removing them from the Controlled Substances Act.

In fact, the Drug Enforcement Administration always has considered products converted from CBD into THC to be illegal, classifying them as Schedule 1 drugs.

When the DOJ recommended rescheduling marijuana, it specified that synthetic THC – the stuff being sold under the Farm Bill – would remain a Schedule 1 substance.

Public perception of products containing synthetic THC will change, and in the absence of federal action, states need to be as involved in the regulation of hemp intoxicants as they are with marijuana products.

The Mary Miller Amendment language included in the House draft version of the Farm Bill prompted some of the most productive discussions the industry has ever had about the need for a regulatory system.

The system needs to treat THC as THC, regardless of its source.

And lawmakers need to respect existing state-regulated markets, which can’t require reauthorization every five years.

Today, there is broad recognition that a functional regulatory system is required, not just a congressional loophole.

Regulating hemp and marijuana

As this issue evolves, it will become increasingly clear that operators that produce and sell THC – whether from hemp or marijuana – all must operate within a single regulatory system.

For some on the “hemp” side, this might mean new product testing and labeling requirements, taxation plans, production standards and getting behind criminal justice reform and social equity programs.

The marijuana movement writ large is about more than business interests; it is a framework for ending the war on cannabis.

The argument that synthetic hemp intoxicants stand on special federal legal ground, shielded from serious regulatory control by states, is not viable public policy.

This approach robs the industry of its future by not properly coming to terms with the past.

Now is not the time to misread Congress or mislead consumers, which will spell peril for the wider industry precisely when its biggest opportunity is within sight.

It’s time to clear the haze around this issue with Congress and recognize that marijuana and hemp should be federally regulated and treated as a single industry, as should have been done all along.

Michael Bronstein is president of the Washington, D.C.-based American Trade Association for Cannabis and Hemp. He can be reached at info@atach.org.