July 19, 2023

Is the 2023 Farm Bill a monster in the closet coming out to get you?!

A new Farm Bill is coming. 2018 brought us legalized hemp. What will 2023 bring us?

Hi, I’m Morgan Davis. I’m an attorney practicing cannabis and business in North Carolina. Let’s talk about how to keep your business protected and thriving. About every five years, Congress passes a new Farm Bill or Agricultural Improvement Act that shapes food and agriculture, rural economies, trade on farm energy production and so much more. They tend to be massive pieces of legislation that can be thousands of pages long, and they effect everything we can imagine when it comes to what we grow, what we eat in this country.

In 2018, one of the biggest things that we talk about all the time is the fact that the 2018 Farm Bill took industrial hemp out of the Controlled Substances Act and started treating it like a commodity, like wheat or soy or anything else. With that came all the cannabis and hemp industry and all the hemp derived products we now talk about on a daily basis. So CBD, Delta-8 Delta-10, HHC, THCA, and on and on and on.

2023 Farm Bill

This year, 2023, we get a new farm bill and a lot of people have been asking after the farm bill passes, am I still going to be around? Is the farm bill going to regulate what I do? And the answer is maybe, maybe not. And historically, products are left to the FDA, especially products for consumption, whether that’s inhalants, food, beverage, whatever the case may be.

So it would be unusual for the farm bill to regulate a product, an end product. But since the FDA hasn’t done their job and states have been left to do it themselves, perhaps the farm bill will be used to try and add on some of that regulation for consumer protection. And that has failed to happen either with the FDA or the DEA, but maybe not.

Congress is currently developing the farm bill for 2023. It’s projected to authorize 709 billion over the next five years. And 1.4 trillion over the next ten years. Most of the programs are going to go to food assistance programs, support commodity crops, dairy industry, etc. until the bill passes, which will not be until later this year. Lobbying will continue as it goes through the committees and it will be changed and amendments will be added.

The focus of hemp in this bill is not clear.

And so until it’s said and done, we will not know the end result. The focus of hemp in this bill is not clear. It doesn’t seem to be one of the main focuses, though. It has been the it has been a subject of a lot of discussion inside of the committee hearings. One of the biggest lobbying groups that is trying to get the farm bill to address the issues and hemp industry is the cannabis regulars, is the regulator Association or Kendra.

It’s composed of state regulators in more than 40 states that deal with their own regulation of hemp products and cannabis products at the state level. As you can imagine, they are desperate for some federal direction as to what should be legal, what shouldn’t be legal, how to deal with some of the large issues that we talk about, for example, what they call the point 3% loophole loophole, point 3% loophole is something we’ve talked about many times, I think using the word loopholes in technically accurate, The black letter of the law under the farm bill from 2018 is that any product that is 0.3% Delta nine THC or less by dry weight is hemp.

The problem is when you apply that to fiber and grain, that’s one standard. When you apply it to end products that are heavier and can contain more concentration, you can end up with intoxicating hemp products that are legal and mimic or mirror their regulated cannabis. Brothers and sisters above 0.3%. Delta nine THC. This is called the loophole. Again, I don’t think it’s a loophole.

I think it was. Nobody really understood what was going to come from taking hemp out of the Controlled Substances Act. Nobody could foresee the blossom of the hemp industry that has occurred. So now they would like Canada would like the 2018 farm I’m sorry, the 2023 farm bill to try and close that gap. And they want to change either change the definitions or set a national standard for end products.

THC loophole

The other loophole is what’s called the THC loophole. THC So hemp plants have relatively high tetrahydrocannabinol phenolic acid THC. Forgive my pronunciation, which is not intoxicating. However, when it’s heated, it converts to Delta nine. So what you can have as a legal product when you sell it the second that it’s heated up becomes an illegal product, but it’s being consumed.

And so if that consumption happens in your mouth and then you’re ingesting it, hard to enforce the limits when when it’s sold, when it’s purchased, it’s illegal. And then it only becomes illegal at the point of ingestion. The 2018 farm bill didn’t address THC because nobody imagined that THC was going to become as popular of a product as it has become.

They would like THC to become part of a total THC standard. Now, the USDA has done that for growers. So for growers under the USDA program, the THC concentration of your flower after having harvested is based on a total THC concentration. So they take both the Delta nine, THC and the THC concentration to equal your total THC, which still has to come under 0.3%.

That total THC standard is not applied uniformly across the United States to end products certain people would like it to be. Doing that would not only affect CAA, it would affect all hemp derived products and products. So these are the things that certain lobbying groups, including Canada, would like to see the farm bill do. There’s other groups that are more focused on fiber and grain who are actually looking to increase the limitation of point 3% Delta nine dry weight specifically for fiber and grain.

And they have a good point, which is fiber and grain is not going to be consumed. So what does it matter if it’s a point 3% limit and they want to increase it to a 1% limit so that you don’t have so many farmers who are having to deal with this very finicky, very hard to tread line of 4.3% for Delta-9 or total THC by dry weight.

They also want to go back to including a definition for hemp or hemp products or hemp consumable products, and a definition for industrial hemp, meaning industrial hemp would continue would encompass that which is fiber, grain building materials, non consumable hemp production, hemp consumable products or hemp would be applied to those that we are consuming.

Again, trying to bifurcate the parts of this industry so that farmers aren’t held to the same standard when they are producing things that have that are not intended for consumption. And so therefore the intoxicating effects are irrelevant. We won’t know the outcome of any of this until it’s all said and done this fall. Stay tuned and we’ll talk some more about it next time.

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