As legislative sessions across the country continue this spring, we have started to notice an emerging trend among elected officials. Many state senators and congresspersons are being bombarded with requests to clarify, curb, or cancel the rapidly emerging market of mood-altering products containing hemp-derived cannabinoids. We wrote about Virginia’s attempt to regulate these products last week. Short of a veto by the Governor, the future of VA’s hemp industry looks dire.

This post focuses on Florida. We will continue write about states where the hemp industry is under threat from state legislatures and regulators.

YES, FLORIDA IS ABOUT TO KILL OFF ITS HEMP INDUSTRY. HERE’S HOW:

The Sunshine State is attempting to address the popularity of products containing mood-altering hemp-derived cannabinoids. Two bills, House Bill 1475 and Senate Bill 1676 (collectively, the “Bills”), were filed in Florida’s General Assembly on March 3, 2023. These bills (which are identical) address, inter alia, hemp extract and certain regulations surrounding hemp extract.

At present, the Bills provide new and/or revised definitions (underlined below) for Florida’s hemp-derived products marketplace. Specifically, the Bills define “hemp” as:

“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 thereof, whether growing or not, that has a total delta 9-tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis, with the exception of hemp extract, which may not exceed 0.3 percent total delta-9 tetrahydrocannabinol on a wet-weight basis. The term does not include synthetically derived cannabinoids.”

Additionally, “hemp extract” is further defined as:

“a substance or compound intended for ingestion, containing more than trace amounts of a cannabinoid, or for inhalation which is derived from or contains hemp and which does not contain controlled substances. The term includes snuff, chewing gum, and smokeless products derived from or containing hemp, but does not include cannabinoids that are synthetically derived or seeds or seed-derived ingredients generally recognized as safe by the United States Food and Drug Administration.”

“Synthetically derived cannabinoids” are defined to mean: “any cannabinoid created by reacting a cannabis- or noncannabis derived extract with solvent or acid to increase the concentration of a present cannabinoid or to create a new cannabinoid not originally found in the extract.”

Finally, “total tetrahydrocannabinol” is defined as: “the sum of all tetrahydrocannabinol isomers, with a concentration of more tetrahydrocannabinol-A multiplied by 0.877, in milligrams per gram multiplied by the labeled weight of the product.”

Clearly the new definitions of “hemp” and “hemp extract” are aimed at prohibiting the distribution of products that contain mood-altering hemp-derived cannabinoids. As many readers of this blog will know, there has been a growing trend among hemp-derived product manufacturers to introduce “compliant Delta-9 gummies” that, while containing less than 0.3% Delta-9 THC on a dry-weight basis, contain a sufficient quantity of Delta-9 THC to have mood-altering effects on the consumers of those products. By amending the definitions of “hemp” and “hemp extract” and including new definitions regarding “synthetically derived cannabinoids” and “total tetrahydrocannabinol” the Florida legislature is seeking to restrict the ability of manufacturers to introduce many hemp-derived products into the stream of commerce.

Additional efforts to regulate these products in the marketplace can be seen in other changes the legislature is making to Florida’s hemp regulations, particularly regarding the distribution and retail sale of hemp extract. For instance, the Bills stipulate that:

“Hemp extract may only be distributed and sold in the state if the product:

“… The batch was processed in a facility that holds a current and valid permit issued by a human health or food safety regulatory entity with authority over the facility, and that facility meets the human health or food safety sanitization requirements of the regulatory entity. Such compliance must be documented by a report from the regulatory entity confirming the facility meets such requirements.”

The Bills mandate that “hemp extract may only be sold to a business in this state if that business is properly permitted as required by this section.” Additionally, the Bills expand on other limitations that were previously in place, such as insisting that certain products be sold only to persons over the age of twenty-one as well as including serving or container size requirements. For reference, the Bills state:

“Products that are intended for human ingestion or inhalation and contain hemp extract may not:

1. Be sold in this state to a person who is under 21 years of age; or
2. Exceed 0.5 milligrams total tetrahydrocannabinol per dose or 2 milligrams total tetrahydrocannabinol per container.”

Finally, the Bills provide additional restrictions on the sale and distribution of “hemp extract” by stating:

“The Department shall adopt rules for:

3. Packaging and labeling requirements that ensure that hemp extract intended for human ingestion or inhalation is not attractive to children.

4. Advertising regulations that ensure hemp extract intended for human ingestion or inhalation is not marketed or advertised in a manner that specifically targets or is attractive to children.

120. The department shall adopt rules pursuant to § 120.54 and § 120.536 to establish tetrahydrocannabinol isomers to include in calculating total tetrahydrocannabinol, which must include, at a minimum, delta-8 tetrahydrocannabinol, delta-9 tetrahydrocannabinol, delta-10 tetrahydrocannabinol, exo tetrahydrocannabinol, and hexahydrocannabinol.”

The Bills are set to take effect on July 1, 2023. These Bills are an existential threat to Florida’s hemp-derived products industry, particularly for manufacturers and retailers of products that will no longer be permitted should these Bills become law. While industry participants should prepare themselves accordingly for the effective date of these regulations, a more pertinent approach to these newfound prohibitions would be to reach out to Florida legislators in order to express your dissatisfaction with these proposed regulations. Click here to find who your Florida legislators are so you can contact them today.

Notably, the Florida chapter of the Healthy Alternatives Association is soliciting assistance donations to defeat these bills. 

Kight Law can provide information on how to push back against these bills, and also to help you navigate the ever-changing regulatory landscape surrounding cannabis products. Click here to schedule a consultation today.

March 9, 2023

This article was written by attorney Philip Snow. Kight Law represents hemp businesses in the US and throughout the world. To schedule a consultation please click here and mention this article.

Source: https://cannabusiness.law/is-florida-is-about-to-kill-off-its-hemp-industry/

February 21 2023

On February 13, I posted an article about the DEA’s response to my inquiry regarding the legal status of THCO. As my readers are aware, the DEA stated that THCO is a schedule 1 controlled substance. The DEA’s position, which was spread via my article, created what several people have called a “shitstorm”. For several days afterwards, I was contacted by both cannabis and non-cannabis mainstream media. My phone rang constantly, and my email inbox filled up with questions and requests for comments about THCO from people all over the US and also from several continents. Frankly, I was surprised at the public response to the DEA’s position and my article.

Then three things happened.

First, many people and numerous media organizations misread (or did not read) my article and pronounced in bold and inaccurate headlines that the DEA said delta-8 THC is illegal. (The DEA’s position is actually the opposite, as I discuss in an article you can read by clicking here.) Several clients who manufacture and distribute delta-8 THC products told me that their phones were ringing constantly with distressed customers asking about what they should do now that “delta-8 THC is illegal”. Once misinformation is spread, it is difficult to undo the damage. I attempted to clarify things in an article I posted on February 18. In a continued effort to staunch the flow of misinformation, I want to be very clear:

The DEA letter to me was solely about THCO, specifically delta-8 THCO and delta-9 THCO. It did not in any way address delta-8 THC or any other compound. The legal status of delta-8 THC was not impacted in any way by the DEA’s letter, except to the extent that its lawful status as “hemp” was reinforced, an issue that I discussed in the article referenced above.

Second, I began hearing that people were angry with me, even though I was only the messenger. To be clear, I anticipated the DEA’s position and do not dispute it. As the author of the “derivatives” argument that provided the legal foundation for delta-8 THC, I found myself in the surreal position of having people use my argument against me in an attempt to justify why the DEA and I are both wrong. I discussed this in detail with Cannintelligence.com. I said that I would be “laughed out of court” if I argued to a Judge that a synthetic compound that the hemp plant does not produce, and in fact can only be produced in a lab, meets the legal definition of “hemp” under the 2018 Farm Bill. (“Mr. Kight, so you’re trying to convince me that this synthetic, lab-produced compound is “hemp” when the hemp plant does not even produce it? Are you kidding me?”)

Regardless of one’s personal views on THCO, the fact is that it is indefensible as “hemp”, derivative or not. My primary goal is to support the hemp industry, and this simply is not possible when legal arguments, including the very ones I created, are stretched to their breaking point in an attempt to justify the legal status of a synthetic compound that is plainly not “hemp”. I do not want my clients to spend decades in jail for selling a controlled substance, nor do I want the entire hemp industry as we know it to be placed on the Congressional chopping block because some people end up harmed, or even dying, due to their inhalation of a product that is sold as “hemp”.

Third, the anger at me for publishing the DEA’s position and for having the audacity to agree with it, morphed into something sinister: flagrant defamation. Yesterday, a good client forwarded me an email by a sales representative for a hemp company I do not represent. This woman, whose name I am intentionally not publishing to protect her privacy, sent out 65 emails to the company’s customers, most of whom are retail outlets throughout the US, making some ridiculous and wholly untruthful allegations about me. Her email, followed by her apology and retraction, is below. Those retail outlets then proceeded to forward the libelous email to their contacts in the hemp industry. (I should note that the President of the company called and informed me that this email did not represent the position of the company.) Based on this wildfire of defamation, I am now in the position of having to post a blog article to deny the allegations. So, here it goes:

• My article about THCO was not “a misleading ulterior motive piece.” My purpose for contacting the DEA about THCO was twofold. First, I had a concern about the rising popularity of THCO and was worried that hemp industry participants who sold it would end up in jail. I wanted to know the DEA’s position from the “horse’s mouth”, so to speak. Second, a client wanted to ship THCO to Europe. Rather than learn the DEA’s position after seizing my client’s shipment before it left the US, or while he was behind bars, I decided it was best to know the DEA’s position before he took any action. I’m glad I did.

• I am not “a marijuana Lobbyist who has scammed people within the hemp industry to think THCA is legal so [my] marijuana growers can make money on a dying marijuana market.” I am not a lobbyist. I am not a marijuana lobbyist. I have not scammed anyone, and certainly not people in the hemp industry. I have no motives whatsoever in advising clients that THCa hemp flower is lawful under federal law except to advise them that it is lawful and also to help expand their businesses and the hemp industry in general. In fact, I routinely speak out publicly against Big Corporate Marijuana and its negative effects on the cannabis and hemp industry.

• I am not “being sued by many people for misleading them on THCA so [I’m] trying to spin and deflect.” I am not being sued by anyone, nor have I misled anyone about THCa hemp flower, nor am I trying to spin or deflect anything. My article about the DEA’s position on THCO was simply another news/legal analysis article of the type that I have been writing for the past eight years.

As I write this, my office manager (who is also my wife) is literally fielding a call from an angry person who called out of the blue and who is screaming at her about THCO and that I am “working with the government”. So, I guess I should also address that, too. I do not work for the government. In fact, I have sued the government (specifically, the DEA) in several lawsuits and usually disagree publicly with the DEA.

I am a cannabis advocate. I changed my career after personally experiencing the enormous medical and health benefits that cannabis provides when I had cancer. I represent hundreds of hemp businesses and spend a lot of time, both paid and pro bono, working to promote and expand the hemp industry. It is thus frustrating, maddening, and demoralizing to be defamed and made subject to angry and misinformed calls, emails, and disinformation campaigns in response to my publication of a letter from the DEA regarding an important issue for the hemp industry that I diligently work to protect.

Thank you for taking the time to read this article, which I regret having to post in the first place. I continue to work hard for the cannabis industry, and in particular, the hemp industry. Please feel free to contact me directly if you have any questions or need assistance.

Below is the libelous email and the apology/retraction. I hope that if you receive similar emails and/or hear similar things being said about me, you will refute them and even reach out to let me know. This type of thing wastes time and impedes my ability to focus on working for clients and the industry at large.

Source:

Despite its brevity, the DEA letter I received last week about THCO was followed by confusion and lots of speculation in the cannabis industry about the legal status of novel and mood-altering cannabinoids. This is unfortunate, because I think the letter provided additional clarity, not just about THCO, but about cannabinoids in general. In this article, I will break down the legal status of novel and mood-altering cannabinoids, including a discussion of the “synthetic versus natural” issue that is dominating much of the cannabis conversation in cannabis media and state legislatures. This may sound like a lot, but it is actually pretty straightforward.

Part 1- The DEA letter did not address delta-8 THC

I will start by clearing up a primary point of confusion. The DEA did not state that delta-8 THC is a controlled substance. The DEA’s letter was solely about THCO, specifically, two forms of THCO: delta-8 THCO and delta-9 THCO. The DEA letter did not discuss delta-8 THC, which it has previously stated is not a controlled substance.

Even though the abbreviations are similar, delta-8 THC is a different molecule from delta-8 THCO. This point is easy to grasp when we look at the actual names of the compounds we are discussing, rather than their abbreviations. The DEA letter was about delta-8 and delta-9 “tetrahydrocannabinol acetate ester” (THCO). This a different compound from “tetrahydrocannabinol” (THC). The “delta”, followed by the number 8 or 9, is a specific designation regarding the location of a double carbon bond on the chain of carbon atoms shared by both THC and THCO. Specifically, a “delta-8” molecule has the double bond on the eighth carbon atom in its molecular structure and a “delta-9” molecule has the double bond on the ninth carbon atom. So, “delta-8 THC” refers to a tetrahydrocannabinol molecule with a double bond on the eighth carbon atom. “Delta-8 THCO” refers to a different molecule, tetrahydrocannabinol acetate ester, with a double bon on the eighth molecule.

The bottom line is that, although they share some similarities, delta-8 THCO is a different compound from delta-8 THC. In fact, delta-8 THC can be used as a starter compound to synthesize delta-8 THCO in a lab. Additionally, delta-8 THC is naturally produced by the cannabis plant, a crucial point discussed below; delta-8 THCO is not. At the risk of redundancy, the DEA letter solely addressed THCO, not delta-8 THC, delta-9 THC, or delta-10 THC.

Part 2- What can we infer from the letter about the legal status of other cannabinoids?

Although the DEA letter was solely about THCO, if we view it in conjunction with the plain language of the 2018 Farm Bill and prior DEA statements, we can see a picture emerge as to how the DEA views novel and mood-altering cannabinoids. Here’s what we know:

• The DEA letter about THCO states: “Delta-9-THCO and delta-8-THCO do not occur naturally in the cannabis plant and can only be obtained synthetically, and therefore do not fall under the definition of hemp.”

• During a video webinar called a “Town Hall with USDA and DEA” conducted by the Florida Department of Agriculture and Consumer Services (“FLDACS”) on June 24, 2021, in response to a question about delta-8 THC, the DEA stated: “I also want to expand beyond delta-8. There’s delta-8, there’s delta-10, there’s all kind of different cannabinoids that are associated with cannabis sativa l that are kind of out there and making the rounds. So what I want to say, and I’ll be very, very deliberate and clear. At this time, I repeat again, at this time, per the Farm Bill, the only thing that is a controlled substance is delta-9 THC greater than 0.3% on a dry-weight basis.”

• A DEA letter to the Alabama Board of Pharmacy dated September 15, 2021 states: “only tetrahydrocannabinol in or derived from the cannabis plant—not synthetic tetrahydrocannabinol—is subject to being excluded from control as a “tetrahydrocannabinol[] in hemp.” With respect to “synthetic THC”, the DEA clarifies in the letter that it means, “produced synthetically from non-cannabis materials.”

Based on these statements, the DEA only considers material that the cannabis plant naturally produces with delta-9 THC concentrations that do not exceed 0.3% by dry weight to be lawful “hemp”. Importantly, the fact that the material in question may have been produced in a lab appears to be immaterial, provided that the cannabis plant naturally produces that type of material and the material in question was derived from the cannabis plant. This is why delta-8 THC and delta-10 THC, which are often created in a lab, are not controlled substances. They are derived from the cannabis plant (usually from extracted CBD) and the cannabis plant naturally produces them. (Click here for a deeper analysis on delta-8 THC.) On the other hand, if the material is a form of THC that the plant does not naturally produce it is controlled. This is why THCO is controlled.

A quick way to determine if a particular cannabis (or cannabis-like) substance is lawful “hemp”, ask:

• Does the cannabis plant naturally produce this substance?
• Does this substance have delta-9 THC concentrations above 0.3%?

If the answer to either question is “no”, then it is not lawful hemp.

Part 3- Conclusion

This article solely addresses the legal status of cannabinoids at the federal level. Although they shouldn’t, state laws vary considerably on this issue. Notably, this article does not address the FDA and its tortured response to the emergence of hemp-based cannabinoid products. Finally, it does not address how these products should be marketed. Certainly, mood-altering hemp cannabinoid products should not be sold to minors. Those are all issues for another article. Hopefully, the control status of hemp cannabinoids is now clearer. Feel free to contact me if you have questions or want assistance with your cannabis business.

https://cannabusiness.law/cannabinoid-breakdown-analyzing-the-deas-position-on-novel-cannabinoids/