It is not unusual for Congress to use spending bills to enact legislation that might have trouble passing on its own merits. That’s not to say they employed the tactic in May 2022 in a spending bill that also addresses hot CBD, but the net effect is the same. Should the bill become law, it will expand the definition of industrial hemp so as to prevent the criminalization of CBD processing due to a well-known quirk that temporarily increases THC levels.
The spending bill still needs to get out of committee and on to the floor for vote. Very little resistance is expected, as is normally the case with benign spending bills. The good news is that the bill puts both the DOJ and DEA on notice that Congress expects them to stay out of the hemp industry.
1. The Hot Hemp Problem
Industrial hemp was legalized in the U.S. by the 2018 Farm Bill. But hemp is differentiated from marijuana by just one factor: THC content. Both hemp and marijuana are types of cannabis. Hemp is so designated if its THC content tests at 0.3% or less. Any plants with a higher THC content are considered marijuana.
The tricky thing for hemp growers is making sure that THC doesn’t become a problem prior to harvest. If plants are found to have too much THC, they are considered hot. Under federal law, they cannot be harvested and sold to processors. If a grower doesn’t have a state license to grow marijuana, the hot plants have to be destroyed.
The same quirk causes problems for processors too and is the reason Congress has decided to step in. They want to protect processors against hot plants that can otherwise ruin their businesses.
2. Hot CBD Processing
Pure Utah is a medical cannabis pharmacy located in Payson, UT. They say that in order to produce both CBD and THC products for retail, processors take cannabis plant material and put it through an extraction procedure to capture cannabinoids and terpenes. Those cannabinoids and terpenes become the base ingredients for retail products.
They also say that both plant material and the cannabinoids they contain can go hot during extraction. Until the new law takes effect, hot conditions dictate that a legal CBD extractor is now illegally processing THC. The operation is illegal even though the hot condition is only temporary.
This is exactly the kind of thing Congressional lawmakers want to take out of the equation. The language they inserted into the spending bill forces federal law enforcement agencies to recognize CBD products as fully legal as long as they are below the 0.3% threshold at the time they are packaged for sale.
3. Much Needed Legislation
Regardless of where you stand on THC, it is hard to argue against this particular law. It is much needed legislation that will protect growers, processors, and retailers involved in an industry that is legal across the country. The fact that the law was needed is a clear demonstration that the DEA is not afraid to nitpick in its fight against cannabis.
The strange thing is that the federal government stopped actively pursuing marijuana cases years ago. So why the DEA or DOJ would get hung up on temporarily hot CBD isn’t clear. The whole thing doesn’t make a lot of sense. Nonetheless, kudos to Congress for recognizing a problem and fixing it.
By this fall, growers and processors will no longer have to worry about a temporary hot condition. As long as what goes out the door tests at 0.3% THC or less, all will be well and legal.