Senate Committee Urges Hemp THC Rule Change And Includes Numerous Other Marijuana Provisions In Spending Bills

Senate appropriators on Tuesday released several wide-ranging spending bills and related reports for the 2021 fiscal year that include a variety of provisions related to marijuana and hemp.

Perhaps the most consequential new provision from the Senate Appropriations Committee—at least in the short-term—criticizes a proposed hemp rule from the U.S. Department of Agriculture (USDA).

Hemp is defined under federal statute as containing no more than 0.3 percent THC, but the agency proposed a negligence threshold of up to 0.5 percent—and farmers who exceed that limit would have to destoy their crop. The Senate panel is pushing back against that rule, however, urging USDA to reconsider that “arbitrary” policy in light of stakeholder feedback.

The Senate report also says that another USDA provision “creates roadblocks for farmers by requiring an unrealistic timeframe for testing” and asks the agency to “ensure that any final rule is based on science and will ensure a fair and reasonable regulatory framework.” Advocates and stakeholders have made similar arguments since USDA released its interim rule.

Several other cannabis-related provisions that have appeared in prior appropriations bills and reports are back again. Those include measures banning Washington, D.C. from using its own local tax dollars to implement a regulated marijuana market and protecting state medical cannabis programs from federal intervention. Additionally, lawmakers continue to flag barriers to marijuana research caused by federal prohibition.

One new section asks the National Institute on Drug Abuse (NIDA) to add more cannabis-related questions to an annual federal survey of young people. Specifically, lawmakers want to include measures of “consumption of flavored marijuana vapes and marijuana edibles flavored to appeal to adolescents.”

As noted, the spending bill and committee report cannabis provisions largely align with prior years’ spending bill. Beyond the D.C. and medical marijuana sections, senators also called for $5 million in funding for Food and Drug Administration (FDA) research into cannabis and its derivatives, protecting state hemp programs and expanding marijuana studies within the U.S. Department of Health and Human Services (HHS), for instance.

The House advanced its own appropriations bills over the summer that include broader cannabis reform policies, though there is some overlap between the two chambers.

The House versions contain provisions to protect recreational marijuana legalization laws from federal interference, ease cannabis businesses’ access to basic banking services, expand research, oversee the country’s hemp and CBD industries and grant D.C. the ability to legalize recreational sales.

Fiscal year 2021 already began on October 1, so the government has been relying on continuing resolutions (CRs) to keep programs and agencies funded. Hemp advocates celebrated after the president signed a CR in September that extends a 2014 pilot program for the crop until 2021. It was initially set to expire in October.

The current CR in place will end on December 11, meaning that there would be a federal shutdown if lawmakers don’t pass another short-term extension of full-year appropriations package by then.

“By and large, these bills are the product of bipartisan cooperation among members of the committee,” Appropriations Committee Chairman Richard Shelby (R-AL) said of his panel’s new bills in a press release. “Time after time, we have demonstrated our willingness to work together and get the job done. We have before us the opportunity to deliver for the American people once again.”

Hemp advocates celebrated the committee’s pushing USDA on the issue.

“It is clear that YOUR lobbying has been effective, and we are very optimistic that this will make a difference as USDA moves to a Final Rule,” the advocacy group U.S. Hemp Roundtable said in an email blast responding to the THC-related report language.

Below is the full language of each cannabis-related legislative and report provision, separated according to their respective area of policy.

Hemp and CBD

The reports also call on federal agencies to “propose amendments” to resolve concerns about hemp THC limits, study the environmental impacts of hemp cultivation and reject new agricultural user fees, including those imposed on cannabis producers.

Hemp.—The Committee is concerned that the interim final rule entitled ‘‘Establishment of a Domestic Hemp Production Program’’ published by the Department of Agriculture in the Federal Register on October 31, 2019 (84 Fed. Reg. 58522) creates roadblocks for farmers by requiring an unrealistic timeframe for testing, the use of Drug Enforcement Administration registered laboratories, the conversion of THCA into THC, a sampling of only flowering tops, and an arbitrary negligence threshold of 0.5 percent. The Committee directs USDA to propose amendments to the interim final rule to ensure that any final rule is based on science and will ensure a fair and reasonable regulatory framework for commercial hemp production in the United States. In addition, the Committee encourages the Secretary to utilize current Agricultural Research Service research to revise the hemp sampling and testing protocols.

Hemp Cultivation Sustainability.—The Committee encourages the Secretary to study the usage and impacts of energy and water in hemp cultivation and controlled environment agriculture and to make recommendations on best practices and standards in both sectors.

Hemp.—The Committee is aware of statements made by the Department acknowledging the eligibility of researchers participating in hemp pilot programs, as defined by Section 7606 of the Agricultural Act of 2014 (Public Law 113–79), to compete for Federal funds awarded by the Department. The Committee directs the Department to work with and inform stakeholders of this eligibility and to support hemp research, as authorized by Section 7606 of the Agricultural Act of 2014 (Public Law 113–79) and Subtitle G of the Agricultural Marketing Act of 1946 (7 U.S.C. 1621–1627, 1635– 1638)

Hemp Germplasm.—The Committee recognizes the increasing demand for hemp for a variety of uses and its growing importance as a crop for U.S. farmers. When the Nation’s hemp germplasm was destroyed in the 1980s, researchers lost access to publicly available germplasm for plant breeding purposes. The Committee directs ARS to establish and maintain a hemp germplasm repository at the Plant Genetics Resources Research Unit and provides no less than the fiscal year 2020 level for this purpose. The Committee also encourages ARS and the Plant Genetics Resources Research Unit to partner with 1890 institutions that have existing institutional capacity on hemp germplasm research, education, and extension capabilities.

Hemp Production Systems.—The Committee recognizes the emerging market potential for U.S. hemp and hemp-based products for a variety of uses. The Committee directs ARS to conduct regionally-driven research, development, and stakeholder engagement to improve agronomic and agro-economic understanding of effectively integrating hemp into existing agricultural cropping, processing, and marketing systems. The Committee provides an increase of $2,000,000 for this purpose. Research, engagement, and technology transfer shall be conducted in strict accordance with all applicable Federal and State authorities and regulations.

Proposed User Fees.—The Committee rejects the Administration’s proposal to administratively implement new user fees to cover the government’s full cost for providing services to certain beneficiaries, including licenses for…domestic hemp production… The Committee strongly believes that USDA should not propose new user fees without taking into account the full impact on farmers, ranchers, and beneficiaries who would be forced to contend with rapid changes in these programs and additional burdensome costs without prior notice.

Cannabis and Cannabis Derivatives.—As previously noted, the Committee provides $5,000,000 to support regulatory activities, including developing policy, and for the FDA to continue to perform its existing regulatory responsibilities, including review of product applications, inspections, enforcement, and targeted research for cannabis-derived substances, such as cannabidiol [CBD]. Within 90 days of enactment of this Act, the FDA shall issue a policy of enforcement discretion with regard to certain products containing CBD meeting the definition of hemp as defined by section 297A of the Agricultural Marketing Act of 1964 (7 U.S.C. 1639). Such enforcement discretion shall be in effect until the FDA establishes a process for stakeholders to notify the FDA of use of CBD in products that include safety studies for intended use per product and makes a determination about such product. In addition, the FDA is encouraged to consider existing and ongoing medical research related to CBD that is being undertaken pursuant to an Investigational New Drug application in the development of a regulatory pathway for CBD in products under the jurisdiction of the FDA and to ensure that any future regulatory activity does not discourage the development of new drugs. The Committee also encourages the FDA to partner with an academic institution to expand sampling studies of CBD products currently on the market.

Hemp-Based Products.—The Committee recognizes the growing interest for U.S. hemp and hemp-based products for a variety of uses and directs FCA to work with the institutions under its jurisdiction to provide access to guaranteed loans for hemp producers and businesses.

The Committee provides a net increase of $38,000,000 for cross cutting, medical product and food safety activities requested in the budget. Included in this funding is…$5,000,000 for Cannabis and Cannabis Derivatives…

Hemp Testing Technology.—The Agriculture Improvement Act of 2018 (Public Law 115–334) removed hemp and its derivatives from the Controlled Substances Act (Public Law 91–513, as amended), and authorized the production, consumption, and sale of hemp and hemp-derived products in the United States. The Act requires random testing to ensure hemp meets the definition under the law of having a delta-9 tetrahydrocannabinol [THC] concentration of less than 0.3 percent. The Committee is aware that DEA has developed field testing kits that can distinguish between hemp and marijuana on-the-spot. The Committee directs the DEA to continue to work to ensure State and local law enforcement have access to this field test technology so they can more efficiently conduct their drug interdiction efforts at the local level. The Committee further directs the DEA to report back to the Committee not later than 180 days after enactment of this act, and not less than every 6 months thereafter, until such time as testing kits are deployed to State and local law enforcement in the field.

Bills funding USDA and the Department of Justice also contain long-standing provisions making clear that federal agencies should not interfere with state hemp research programs.

SEC. 744. None of the funds made available by this Act or any other Act may be used—
(1) in contravention of section 7606 of the Agricultural Act of 2014 (7 U.S.C. 5940), subtitle G of the Agricultural Marketing Act of 1946, or section 10114 of the Agriculture Improvement Act of 2018; or
(2) to prohibit the transportation, processing, sale, or use of hemp, or seeds of such plant, that is grown or cultivated in accordance with subsection section 7606 of the Agricultural Act of 2014 or Subtitle G of the Agricultural Marketing Act of 1946, within or outside the State in which the hemp is grown or cultivated.

SEC. 529. None of the funds made available by this Act may be used in contravention of section 7606 (‘‘Legitimacy of Industrial Hemp Research’’) of the Agricultural Act of 2014 (Public Law 113–79) by the Department of Justice or the Drug Enforcement Administration.

Protecting State Medical Cannabis Laws

The Justice Department bill also includes a rider protecting state medical cannabis programs from federal intervention, though it does not account for South Dakota voters’ recent decision to legalize.

SEC. 530. None of the funds made available under this Act to the Department of Justice may be used, with respect to any of the States of Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming, or with respect to the District of Columbia, the Commonwealth of the Northern Mariana Islands, the United States Virgin Islands, Guam, or Puerto Rico, to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

Marijuana Research

The report for the bill to fund the Department of Health and Human Services contains several passages directing officials to expand marijuana research, including a note that cannabis’s Schedule I status impedes research.

Barriers to Research.—The Committee is concerned that restrictions associated with Schedule I of the Controlled Substance Act (Public Law 91–513) effectively limit the amount and type of research that can be conducted on certain Schedule I drugs, especially opioids, marijuana or its component chemicals, and new synthetic drugs and analogs. At a time when as much information as possible is needed about these drugs to find antidotes for their harmful effects, as well as regulatory and other barriers to conducting this research should be addressed.

Flavored THC.—The Committee appreciates the important data collected in the annual NIDA-funded Monitoring the Future [MTF] survey. The Committee recommends the inclusion of questions on consumption of flavored marijuana vapes and marijuana edibles flavored to appeal to adolescents in the annual MTF survey.

Cannabis Research.—The Committee believes that cannabidiol [CBD] and cannabigerol [CBG], compounds found in cannabis, may provide beneficial medicinal effects. However, there is insufficient scientific information about the long-term effects of these compounds. Additional, coordinated research on a national scale could help determine the toxicology and medicinal effects of CBD and CBG. The Committee encourages NIH to consider additional investment in studying the medicinal effects and toxicology of CBD and CBG including clinical trials.

Blocking Washington, D.C. From Legalizing Marijuana Sales

The bill that funds the District of Columbia maintains a current rider banning the city from using its own money to legalize and regulate recreational cannabis sales, whereas the House-passed version of FY2021 legislation proposes repealing the policy.

SEC. 809. (a) None of the Federal funds contained in this Act may be used to enact or carry out any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative.
(b) No funds available for obligation or expenditure by the District of Columbia government under any authority may be used to enact any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et 4 seq.) or any tetrahydrocannabinols derivative for recreational purposes.

Blocking Legalization Advocacy

One bill includes a 1990s-era provision blocking the use of funds for any activity that “promotes the legalization of any drug” classified in Schedule I of the Controlled Substances Act.

SEC. 509. (a) None of the funds made available in this Act may be used for any activity that promotes the legalization of any drug or other substance included in schedule I of the schedules of controlled substances established under section 202 of the Controlled Substances Act except for normal and recognized executive-congressional communications.
(b) The limitation in subsection (a) shall not apply when there is significant medical evidence of a therapeutic advantage to the use of such drug or other substance or that federally sponsored clinical trials are being conducted to determine therapeutic advantage.

That provision was the target of a floor amendment last year from Rep. Alexandria Ocasio-Cortez (D-NY), which was defeated resoundingly. The congresswoman framed her proposal as a way to remove barriers to research on the potential medical benefits of psychedelics.

Congressional Cannabis Leaders Urge Colleagues To Support House Legalization Vote Next Month

Photo courtesy of Brendan Cleak.