Who Rules Over Hemp?

Hemp is the cannabis plant that is used to create CBD products, among other things. The 2018 Farm Bill made it federally legal to grow, possess and sell hemp and hemp-derived products that contain less than 0.3% THC. The keyword in that sentence being “federally.”

Recently, the state of Hawaii has banned the sale and distribution of hemp products containing delta-8 THC and delta-10 THC. The District Court of Hawaii held that the Farm Bill does not prevent a state from creating laws that govern the sale and possession of cannabis products within its borders. This means that, although the Farm Bill decriminalized hemp products, it did not give people a federally protected right to grow, possess or sell hemp. In the end, the states have the authority to regulate what they will and will not allow.

The DEA addressed specifics about the 0.3% THC threshold in a letter published June 2023. The letter stated that this measurement is taken against the amount of naturally occurring cannabinoids at time of harvest – specifically, the naturally occurring cannabinoid delta-9 THC.

What about forms of THC in hemp that are not naturally occurring?

In a letter released back in February, the DEA addressed the concerns over classification of synthetic forms of THC like THC-O. The DEA stated that, because THC-O variants are not naturally occurring, they do not fall under the Farm Bill’s definition of hemp and are considered illegal.

So, how do you categorize a cannabis plant that meets the delta-9 THC requirements but contains other cannabinoids that might fall outside of the definition of delta-9 THC or could change into something different due to further processing? This is one of the many gray areas that is associated with cannabis law and the cannabis industry.

HAT Law is constantly monitoring the changes and developments in the cannabis industry. If you have any questions pertaining to cannabis, please reach out to HAT Law’s Cannabis Legal Team.

Julie Mitchell, J.D., LL.M., jmitchell@hatlawfirm.com, 601-707-4039