By Anthony Deininger, Law Student
Assuming the ongoing rescheduling process is complete and moves all remaining marijuana to Schedule III before November 12, then most naturally derived products that lose their hemp status would be reunited with marijuana instead of being “banned.” (@Anthonys_Takes on X)
The 2018 farm bill defined “hemp” as the plant Cannabis sativa L. and any part of that plant with delta-9 THC concentration of not more than 0.3% on a dry weight basis. This November the definition of “hemp” is being modified, and will be defined as Cannabis sativa L. with plant-level total THC limit of ≤0.3% on a dry-weight basis and total THC of not more than 0.4mg per container. This move drastically reduces the amount of products which qualify as hemp compared to the 2018 farm bill definition. Synthetic cannabinoids and cannabinoids manufactured outside of the plant are expressly excluded from the definition of hemp.
But that is not a ban. It is colloquial known as a “hemp ban” because Congress enacted the change prior to the rescheduling of medical marijuana. In that scenario, failing to qualify as hemp meant that the product fell within the prohibition-at-large of the Cannabis Sativa L. under Schedule I classification. After rescheduling, that is no longer the destination.
The April order rescheduling FDA-approved and state-licensed medical marijuana explicitly stated that the action did not apply to synthetically derived cannabinoids. However, cannabinoids capable of being naturally produced by the plant, but synthesized or manufactured outside the plant, fall under the Controlled Substances Act definition of marijuana once the remainder of the plant is rescheduled (21 U.S.C. §802(16)).
The December Executive Order states that “some full-spectrum CBD products will once again be controlled as marijuana under the CSA when section 781 of Public Law 119–37 [change in hemp definition] goes into effect because they contain THC levels above the per-container threshold set by that law.”
Because the full rescheduling process is very likely to be completed prior to the so-called “hemp ban” going into effect, the result should be that only synthetic cannabinoids remain in Schedule I. Marijuana and hemp will reunited and find home in Schedule III together under the broader Cannabis sativa L. umbrella.
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