Individual states continue to pile on in the battle over intoxicating hemp as they crack down on the potentially unsafe products, which have flooded the market through a loophole in federal law.
In the most recent development, the South Carolina Department of Health and Environmental Control (DHEC) has issued an order banning products that contain CBD, a non-intoxicant, and synthetic, high-concentration forms of psychoactive THC. The agency also imposed labeling restrictions regarding edible hemp products to underscore the bans.
“While DHEC’s goal is to educate while we regulate this growing niche of manufacturers and distributors of foods and beverages containing hemp-derived products as ingredients, our obligation under the requirements of both federal and state law is to remove from commerce all food and beverage products containing non-conforming hemp-derived products as ingredients,” Sandra Craig, Director of the DEHC’s Division of Food and Lead Risk Assessments, said in a letter announcing the bans.
Extreme measures
The move to ban CBD itself in South Carolina is among the most extreme measures taken by officials in states throughout the U.S. While CBD remains on the market in many states due to a lack of clarity in federal regulations, the U.S. Food & Drug Administration (FDA) has repeatedly warned that products containing CBD are illegal under the Federal Food, Drug, and Cosmetic Act. FDA has consistently issued warnings that adding CBD to a food means those products are adulterated, but the agency has delayed setting rules.
SEE: Industry’s failure to address intoxicating hemp products is height of irresponsibility
Other substances that are not allowed to be added to food or beverage products in South Carolina include pure CBD isolate, delta-8 THC, delta-9 THC, delta-10 THC, THC-0 or any other derivative. While the targeted THC compounds are present naturally in trace amounts in hemp plants, sketchy producers have been turning out highly concentrated concoctions by putting CBD through a synthetic process and selling them as “legal” downstream hemp products – jumping through a loophole in the 2018 Farm Bill which legalized industrial hemp and most of its derivatives.
Confusion
Full-spectrum hemp oil or extracts are legal under the 2018 Farm Bill if they contain 0.3% delta 9 THC or less, DHEC clarified in the letter. Stakeholders say that causes confusion because many of the banned substances occur – at barely detectable levels – in hemp oil.
“This action has caused confusion and disruption within the hemp industry, which has responsibly adhered to federal regulations and accurately represented its products,” State Sen. Deon Tedder wrote in response to the DHEC rules announcement. “While I applaud DHEC’s commitment to public health. I urge the agency to prioritize actions that address our most pressing health concerns.”
DHEC also ruled that labels and packaging may not contain references to “THC,” “CBD,” or “delta-9” products, or isolates, as this implies the product is no longer a food item, but a drug and is unlawful. Also, any “full spectrum hemp oil/extract” may not include health claims, and must be manufactured in food-grade conditions.
Viable, non-sterilized hemp seeds, raw hemp leaves, raw micro greens, and any other raw, unprocessed form of hemp biomass may not be added to food or beverage products, DHEC also warned. The agency said those forms of hemp are considered “plant material” and may not be possessed without a hemp grower or processor license.
National crisis
The intoxicating hemp products being targeted have proliferated throughout the country, often marketed to youth in packaging that mimics well-known brands of snacks and drinks. Many producers and sellers have received warnings from the FDA regarding the safety of the products after the agency received reports of serious adverse events from consumers. At least one child’s death in Virginia was attributed to the consumption of delta-8 THC, the most popular hemp-derived synthetic compound on the market.
The intoxicating hemp-derived cannabinoids – such as delta-8 THC, HHC, THC-P and THC-O – appeared in the wake of the CBD boom and bust that followed passage of the 2018 Farm Bill, which failed to account for their emergence. As the market for CBD collapsed, CBD producers began selling their pent-up supplies to the makers of the intoxicating hemp products, based on the loophole in federal law that failed to account for the full range of compounds that can be produced from the hemp plant’s flowers.
The 2023 Farm Bill was expected to address questions surrounding CBD and the intoxicating products that can be made from CBD. But the legislation was delayed to this autumn, meaning one more year of a muddled regulatory picture that individual states are trying to clear up in the name of consumer safety. The following states join at least 13 others that are actively pursuing solutions to the intoxicating hemp crisis:
FLORIDA: The Florida State Senate is scheduled this week to consider a bill that would ban ingestible or inhalable hemp extracts from containing “synthetic or naturally occurring versions of controlled substances” such as delta-8 THC, delta-10 THC, and other downstream products made from hemp-derived CBD. A companion bill under review in the state’s House of Representatives is expected to get a vote soon. The bills would also limit hemp products to 0.3% total delta-9 THC or 2mg THC per serving/10mg THC per container, whichever is less. In addition to delta-8 and delta-10 THC, the bills would also specifically prohibit HHC, THCA, THCP and THCV, and expand restrictions on advertising, packaging and marketing at events where hemp products are sold. Critics of the bills say their provisions would negatively affect nearly 500 growers and roughly 10,000 retail outlets in the state. The bills enjoy the support of the Florida Department of Agriculture and Consumer Services.
HAWAII: Hawaiian lawmakers have called for bundling hemp with marijuana under the law because hemp-derived CBD can be transformed into intoxicating products. The legislators have said it is logical that hemp be included with recreational and medical marijuana under a new Hawaii Cannabis Authority and cannabis control board to be created under the Department of Commerce and Consumer Affairs. The new body would draft rules for and then regulate all three forms of legal cannabis.
IOWA: A bill under consideration in Iowa would also ban the use of “consumable hemp products” by those under age 21 and impose criminal penalties on people and businesses that sell or give those products to minors. The proposed measure would allow the state’s Department of Health and Human Services to regulate sales and distribution and set a maximum potency limit for products derived from hemp. Current law allows for the sale of hemp products that contain less than 0.3 percent THC by weight, but it fails to clearly address the sale of hemp-derived, intoxicating THC products. “We thought we were dealing with the intoxicating aspect (in the original Iowa Hemp Act), only to find out that there are ways to get around that,” said Rep. Steve Holt, who chaired a recent meeting on the legislation. “So it’s sort of the wild, wild west out there in a lot of ways, with THC-infused drinks being able to be served to minors, a lot of other things going on that are not acceptable.”
NEBRASKA: Sparked by the proliferation of delta-8 THC products, a proposed measure in Nebraska would ban hemp-derived products that contain any cannabinoids other than CBD, including non-intoxicating broad-spectrum and full-spectrum products. The bill also redefines marijuana to include hemp that is not lawfully possessed pursuant to licensing rules in the Nebraska Hemp Farming Act. Finally, an overarching provision in the bill would put Nebraska farmers directly under the U.S. Department of Agriculture (USDA), with the state giving up its formal hemp program.
SOUTH DAKOTA: South Dakota’s state House of Representatives unanimously passed a law that would prohibit intoxicating cannabinoids made from hemp-derived CBD such as delta-8 THC, delta-10 THC, THC-O, HHC and THCP. The production or sale of such products would be classified as a misdemeanor punishable by up to a year in jail, a $2,000 fine, or both. The measure would prohibit products that the state health lab could prove were chemically manipulated, but would not include compounds that are extracted in a natural way from hemp. Rep. Brian Mulder, Sioux Falls, who sponsored the bill, said he’s concerned that some manufacturers may be using potentially unsafe household chemicals to make the synthetic intoxicants. The South Dakota Department of Health supports the legislation, which now goes to the Senate for consideration.
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