Tetrahydrocannabinol (THC)

The U.S. Department of Agriculture (USDA) published a final rule today, building off the interim final rule it issued in October 2019 and incorporating both public comments and the agency’s takeaways from the 2020 growing season. In general, the final rule makes modest adjustments to the interim final rule in order to make it less onerous for producers to grow hemp while imposing stricter requirements on how crop must be tested.

Most importantly, the final rule recognizes that growers may accidentally produce crop that contains more than 0.3 percent THC and raises the limit for negligently doing so from 0.5 percent to 1 percent, but requires that producers test for total THC levels in crop, rather than for delta-9 THC levels. Testing for total THC levels makes it more likely a crop could exceed the legal limit for THC in hemp.
Continue Reading USDA’s Final Rule Makes Hemp Easier to Grow, Harder to Test

On December 7, 2020, cannabis industry leaders, former federal government officials, and leading state regulators met for a Virtual Public Policy Summit, a policy discussion among key leaders in the cannabis industry that was co-hosted by the Marijuana Policy Project and the National Cannabis Industry Association (NCIA). Participating industry leaders discussed how to define and address key issues to help advance the cannabis industry in 2021 and beyond. To help facilitate candid discussion, the event was closed to the media (likewise, comments made and positions taken described below have not been ascribed to particular speakers).
Continue Reading Striving to Reach Consensus on a Regulatory Framework for the Emerging Cannabis Industry

Proposition 65 warning requirements announced last year are set to be enforced starting January 3, 2021; if your business is selling cannabis products in California, now is the time to ensure that your labeling complies with state requirements.

Last year, California’s Office of Environmental Health Hazard Assessment (OEHHA) added Δ9‑tetrahydrocannabinol, better known as “THC,” to

As part of its ongoing efforts to address “unanswered questions about the science, safety, and quality of products” containing cannabidiol (CBD) and other cannabinoids, the U.S. Food and Drug Administration (FDA) has announced a multi-disciplinary conference to be held on November 19, 2020.  Hosted by the FDA’s Office of Women’s Health, the public meeting will discuss potential biological and psychosocial differences in use and responses to CBD and other cannabinoids.
Continue Reading FDA Announces Scientific Conference on Sex, Gender, & Cannabinoids

Amid sustained legislative pressure for regulatory guidance and the FDA’s recent submission of draft enforcement guidance regarding cannabidiol (CBD) to the White House, signs from the FDA indicate increased momentum towards a federal pathway for the CBD market. This momentum from the FDA is affected by the approach to CBD taken by the U.S. Drug Enforcement Administration (DEA). While the industry awaits the FDA’s forthcoming guidance policy on CBD enforcement, the FDA’s approach articulated in two recent guidance documents contains important signals.
Continue Reading FDA Guidance Offers Clues Regarding Future Federal CBD Policy

The possession, distribution, and use of cannabis remains illegal under federal law. Consequently, in isolation, employers may believe that enforcing their zero-tolerance policies for drug use (as referenced here, zero-tolerance refers to policies that prohibit any on-duty or off-duty use of unlawful cannabis products) remains a defensible position, including in response to employee complaints that such policies restrict employees’ otherwise permissible use of cannabis products. But how does state legalization of recreational and medical cannabis use fit into the mix? As states become increasingly tolerant of cannabis use, employers may need to reconsider whether their anti-drug and drug-testing policies are compliant with applicable law in order to minimize the risk of discrimination or failure-to-accommodate claims resulting from the employer’s restrictions on the purportedly lawful use of cannabis products.
Continue Reading Zero Tolerance for Zero-Tolerance Policies? The Impact of Cannabis Legalization on Workplace Drug Policies

A new rule from the U.S. Drug Enforcement Administration (DEA) has caused considerable concern within the cannabidiol (CBD) industry. The rule relates to the distinction made in the 2018 Farm Bill that removed certain cannabis products, such as industrial hemp and those containing hemp-derived CBD, with levels of THC not exceeding 0.3% by weight from the federal controlled substances list. THC is the psychoactive substances most associated with a marijuana “high.” DEA’s interim final rule appears straightforward at first glance: cannabis products containing more than 0.3% by weight are subject to DEA enforcement as controlled substances. The rule appears to mean, however, that THC levels can never exceed 0.3% at any point during the product’s manufacturing process, even if the final product offered for sale had THC at appropriate levels.
Continue Reading New DEA Rule May Threaten CBD Manufacturing