2023 Farm Bill Under Construction: What to Expect For Hemp

It’s that time again. The time for the federal government to put together another farm bill. The last one sure shook things up with its legalization of industrial hemp and derived products. But it also created many messes. Now with the new 2023 farm bill under construction, the big question is how it will affect the hemp industry.

What’s a farm bill?

What’s a farm bill? According to Congressional Research Services, it’s an “omnibus, multiyear law that governs an array of agricultural and food programs. It provides an opportunity for policymakers to comprehensively and periodically address agricultural and food issues.” It continues, “In addition to developing and enacting farm legislation, Congress is involved in overseeing its implementation. The farm bill typically is renewed about every five years.” As of yet, there have been 18 farm bills since they came into action in the 1930’s.

An omnibus bill is a bill that deals with an array of topics within one piece of legislation. Though it includes many varying and unrelated measures, the whole document gets passed by a single vote. These bills are often used to pass unpopular, and often completely unrelated, legislation that gets crammed in for whatever reason. A multiyear law implies that it sets policy for multiple years, and is only updated in that same time span. In this case, a new one comes about every five years.

In earlier years, the farm bill was more about supporting commodity programs related to specific crops like “corn, soybeans, wheat, cotton, rice, peanuts, dairy, and sugar.” Things expanded out in 1973 when a nutritional element was included, followed by other elements like horticulture and bio-energy, research, and rural development. Now it encompasses even more.

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Some programs created by farm bills have no expiration date, and have permanent authority. This includes things like crop insurance. Such programs don’t need to be re-authorized per bill, like other programs, including the nutrition assistance program, and the farm commodity support program. Bills in need of re-authorization have a specific end date and expire.

The 2018 farm bill legalized industrial hemp

The last, and currently standing farm bill, is the 2018 farm bill – or The Agriculture Improvement Act of 2018, and it went into effect in December of that year. It expires this year.

Both the 2014 and 2018 farm bills deal with a certain amount of hemp legalization. In 2014, a hemp pilot program was established for research purposes, and ‘hemp’ was re-defined and separated from ‘marijuana’ with the following definition:

“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.”

In 2018, hemp was legalized for industrial purposes. The bill established the Domestic Hemp Production Program which amended the 1946 Agricultural Marketing Act. With the legalization of plants under the above definition, “This established hemp as an agricultural crop eligible for U.S. Department of Agriculture (USDA) farm programs, if it is grown under license and complies with USDA regulations.”

The legalization of industrial hemp means that hemp can be grown and used for industrial purposes. However, industrial purposes don’t include anything medical, or for any use as a treatment, or for ingestion. While regulation of industrial hemp went to the USDA, all other hemp uses remain under FDA regulation. At one point this was further established by Minnesota as per a Department of Agriculture response to a query by a member of the Minnesota Cannabis Association board in regard to CBD tinctures.

The mess created by the 2018 farm bill

The 2018 farm bill never legalized CBD for the internal and medical uses its so often sold for today. Nor did it legalize synthetics like delta-10; as synthetics no longer fit under the definition of a plant, which is integral to the legal definition of hemp. It also didn’t allow for the rest of the cannabinoid market that popped up. But there seems to be mass confusion over why, despite the basic logic of what does and doesn’t fit a definition.

From delta-8 THC to HHC to THCO, producers have taken the confusion of the legalization, and run with it. One of the big misconceptions for the public, is that lesser occurring cannabinoids like delta-8 can’t be extracted directly from the cannabis plant in high enough amounts for product production. Not enough of it exists, plain and simple. As such, for product manufacturing, synthetic processing must be used, which takes these compounds out of the legal definition. If the compounds are extracted naturally, then they fit under ‘hemp’, but none outside of THC and CBD exist in large enough amounts.

What the industry relies on, is the federal government not doing much about it. Going after weed products is getting more unpopular, and it’s a costly process to root out such a massive industry. In light of recent pardons, and its own promise to re-regulate the plant, its not likely the US government will attempt this. Though Shopify dropped clients selling these products (likely at the behest of the US government), stopping sales has proven difficult. In fact, it seems more and more that the best way to get rid of the cannabinoids market, is to offer the real product.

Is the cannabinoid market really that bad though? As the only reported problems are associated with additives, no its not technically a big problem for the health and well-being of the population. Sure, its shady, complete with bogus lab testing; but when you consider the number of overdose deaths that come from legal and government-regulated drugs like opioids, and the overall deaths when including smoking and alcohol, its hard to find a reason to have an issue with the cannabinoids market.

Perhaps the worst we’ve seen, is that it breaks trademark law, which is unfair to established brands; and dangerous in terms of putting cannabis products in packaging recognized by children as a specifically known candy. And sure, without regulation we don’t know how clean the products are. But the lack of a direct death toll from cannabinoids in general, makes the industry much more innocuous than the government lets on.

The inconsistency of feelings toward the cannabinoid industry has led multiple states to enact their own legislation, either regulating the compounds or banning them. And the entirety of the industry, including CBD, is now a big topic going into the 2023 farm bill.

What should we expect from 2023 farm bill for hemp and cannabinoids?

Like any bill, the farm bill takes some time to put together. It incorporates a wide range of subjects under the general heading of agriculture (along with whatever else gets shoved in), and requires months of writing, and arguing, and getting mad at one another, as bills tend to do. The 2023 farm bill is likely to include several provisions that relate to hemp and cannabinoids.

• For one thing, the current dividing line between hemp and marijuana, is .3% THC. The 2023 farm bill may increase the allowable THC amount to 1%.

• The current farm bill actually only deals with cultivation. As during product production, the THC can go above the boundary line, its thought that a provision might be included to allow higher THC amounts in what are called “work-in-progress” products, or products in the interim-processing phase when THC amounts might cross the line temporarily.

• The 2023 farm bill may also erase the need for DEA lab testing; a provision instituted for the asinine sounding reason that if THC goes over .3%, then it becomes illegal to have…apparently even for a testing facility (you do the math on that one). Obviously it makes more sense to use other testing facilities to promote testing availability.

• It also might take off the ban on obtaining a hemp license that those with drug convictions are subject to.

• And last but not least, it may seek to officially close the loophole – perceived or real – that drives the confusion (and industry) of hemp-derived cannabinoid products.

In 2022, a federal appeals court (The Ninth Circuit panel in San Francisco) made a ruling on trademark infringement specifically, saying one company accusing another of selling counterfeit versions, was correct in its accusation. The product in question was a delta-8 THC vape cart. As you can’t trademark an illegal product, this ruling worked to legitimize the delta-8 industry; but never commented on basic product legality requirements, or issues of synthetics.

Different congressional bills have been introduced to close these gaps with specifics, but none passed yet. Its thought that there are a couple which have a chance of being included in the upcoming farm bill. HR 841 and S. 1698, the “Hemp and Hemp-Derived CBD Consumer Protection and Market Stabilization Act of 2021” and “Hemp Access and Consumer Safety Act”, respectively, deal with the allowance of CBD and other cannabinoids in dietary supplements and food.

Other laws to come up, and which could be at least partially included, include H.R. 6134 which seeks to establish safety standards and labeling requirements for cannabinoid products; and H.R. 6645 which seeks to attack the issue of synthetics by officially excluding synthetic derivatives.

Conclusion

The 2018 farm bill created a lot of confusion around hemp and cannabinoids. Now we’ll have to wait and see what the 2023 farm bill does to clean up the mess. Or if it ignores it entirely.

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