The 2018 Farm Bill revolutionized the hemp landscape, jump-starting an industry currently valued at more than $4 billion and expected to reach $16 billion by 2030. The bill made hemp-derived cannabidiol (CBD) products with less than 0.3 percent tetrahydrocannabinol (THC) federally legal, but it also opened the door to a growing number of unanticipated issues.
According to the U.S. Department of Agriculture (USDA), nearly 20 percent of hemp grown in 2021 was destroyed for exceeding the THC limit, highlighting the significant risk farmers and investors face in this burgeoning sector. On the retail side, quasilegal hemp-derived cannabinoids like delta-8 THC have exploded in popularity in areas of the country without adult-use legislation, drawing ire from regulatory bodies while raking in $2 billion over the last two years.
But the hemp landscape could be at the precipice of significant change with an updated Farm Bill slated to roll out under the House Committee on Agriculture led by Chairman Glenn “GT” Thompson (R-PA) and Ranking Member David Scott (D-GA). The industry is cautiously optimistic about the next bill’s ability to address a laundry list of issues.
The industry’s high hopes for the 2023 Farm Bill
Although hemp-derived CBD with less than 0.3 percent THC is technically legal on a federal level, there’s still a great deal of uncertainty when it comes to defining what that actually means.
In June, the Food and Drugs Administration (FDA) issued a warning about the consumption of delta-8 edibles after receiving more than 125 adverse incident reports between January 1, 2021, and May 31, 2022. In July, the FDA sent warning letters to six companies for illegally selling copycat food products containing delta-8 THC.
“Our review of published scientific literature identified potential for adverse effects on the central nervous and cardiopulmonary systems,” the warning letter states. “In addition, studies in animals have suggested that gestational exposure to delta-8 THC can interfere with neurodevelopment. Therefore, based on our review, the use of delta-8 THC in conventional food does not satisfy the criteria for GRAS [generally recognized as safe] status under [regulation] 21 CFR 170.30.”
This uncertainty has left CBD manufacturers in a sort of gray market purgatory, but industry experts are hoping 2023’s Farm Bill will clarify many of the essential details missing in the bill’s current language.
“My hope is that we’ll see legislation pass that will require the FDA to regulate CBD and other cannabis derivatives,” said Jonathan Miller, general council at the U.S. Hemp Roundtable, a national hemp advocacy group. “That would allow the gray market atmosphere to go away; we’ll start seeing big box stores carrying CBD products, or big food and beverage companies adding CBD and other hemp derivatives to their peanut butters, colas, and potato chips. Essentially, this could be an enormous boom for the industry.”
The possible dangers surrounding delta-8 THC may or may not be legitimate, and that’s all the more reason for clear guidelines and regulations around the popular cannabinoid and how it is handled. FDA examination would determine whether delta-8 THC products are safe for consumption, and ensure that any products for sale have moved through the proper chain of scrutiny before hitting retail shelves.
Clearer cannabinoid definitions also would allow brands to get more creative and ambitious with their production, and this time around, experts aren’t just being optimistic about that potential for the sake of it. Quite a few members of Congress also seem to be crossing their fingers for hemp and CBD clarification.
Reps. Chellie Pingree (D-ME), David Trone (D-MD), David Joyce (R-OH), and Nancy Mace (R-SC) announced the Free To Grow Act early in March, a bill that would allow someone with a drug conviction to participate in the hemp industry. Senate Minority Leader Mitch McConnell (R-KY) also has been pushing for hemp legalization since 2018, when he began advocating on behalf of Kentucky farmers interested in expanding their agricultural options.
What the 2023 Farm Bill might mean for cannabinoids
While the industry is hopeful about the 2023 Farm Bill defining CBD from an FDA perspective, there’s also a strong belief that the THC limit for hemp and its derivatives could be raised from a maximum of 0.3 percent to one percent—a shift that would tremendously benefit growers of industrial hemp.
“Raising the limit from 0.3 percent to one percent would eliminate the risk of farmers having to destroy their crop because it’s 0.1 percent over,” said Blain Becktold, owner at Down on the Farm. Becktold worked as a county executive director of the USDA Farm Service Agency for 27 years, administering government farm programs to farmers.
This change could address how we deal with in-progress hemp, which is hemp that might test above the 0.3 limit during processing but meet the legal requirements by the time it’s a finished product. Experts like Becktold may not be convinced the next Farm Bill will tackle in-progress hemp, but they are hoping other derivatives like delta-8 THC will be addressed, especially as they become increasingly popular across the nation.
While the DEA wants to classify the cannabinoid and its sister delta-9 as a controlled substance, the Ninth Circuit Court of Appeals recently ruled that delta-8 THC is generally legal because it’s derived from hemp.
“So many states are doing different things with delta-8 and other cannabinoids,” said Becktold. “Some say it’s fine, some say it’s not. In Michigan, we can do delta-8 products, but the regulatory avenue for it is all over the board. It would be nice if we could get to some standardization.”
The general lack of clear and consistent regulation has been a serious point of pain for the entire legal cannabis industry.
“What the 2018 did for CBD and the consumer was a great thing—for the most part,” said Becktold. “Everyone and their mother jumped into the CBD industry, and it went from 10 of us to well over 3,000 brands overnight. Okay, great, now everyone can make CBD, but there are no regulations behind it. You can make it in your bathtub and sell it, and that’s where there’s been a big fumble when it comes to product safety. Hopefully, the 2023 Farm Bill can push Congress to clarify this as a dietary supplement so consumers can access safe and effective products that are consistent.”
Unleashing new cross-industry opportunities
If realized, the industry’s hopes for the 2023 Farm Bill could supercharge the cannabis, hemp, and CBD markets.
Growers will get to relax a little when it comes to ensuring their crops meet the THC limit requirements, CBD brands will be able to gain credibility with FDA approval, and mainstream retailers like grocery stores will have more opportunities to move into the cannabis space and help spur industry growth.
“Once we have some clear regulation around hemp and CBD, there are two main benefits we’ll be able to see: mass retail and marketing opportunities,” said Chase Terwilliger, chief executive officer at Balanced Health Botanicals.
While mass retailers have started accepting CBD products over the past few years, the reins remain tight over what they will and won’t sell. As a result, both of Terwilliger’s brands, Balanced Health Botanicals and CBDistillery, struggle to reach those major marketing avenues.
“We’re waiting for when they’ll accept ingestibles,” said Terwilliger. “Everyone is waiting for the language needed to get ingestibles on retail shelves. And on the marketing side, companies like Meta or Google still have really extreme restrictions on CBD advertising. We hope that by clearing up that gray muddy water, our products can perform as more traditional dietary supplements and we’ll be allowed to advertise on their platforms with more ease.”
And while much of the industry is hoping 2023’s Farm Bill will clear up the confusion around CBD and other hemp derivatives, some experts would also like to see hemp be defined and categorized outside of other cannabis products—a distinction that might help speed up destigmatization on both sides.
“As a hemp farmer, it’s still very difficult to find a bank that will work with you because you’re dealing with hemp,” said Becktold. “I always use the term industrial hemp, because I don’t want someone to confuse our product with cannabis. I think we need to call marijuana ‘cannabis,’ and hemp ‘industrial hemp.’ That will help us distinguish between the two, which will help overall progress in the long run.
