Under the Agricultural Improvement Act of 2018 (the “2018 Farm Bill”), cannabis products derived from hemp are federally legal to sell and use. “Hemp” is defined in the 2018 Farm Bill as the cannabis plant containing no more than .3% Delta-9 THC. Delta-9 THC is a cannabis compound that produces the “high” effect commonly associated with cannabis use. However, a less well known cannabis compound, which can be found in plants falling under the federal definition of “hemp,” is gaining notoriety for its ability to produce what its proponents consider, “legal weed”. Delta-8 THC is derived from CBD extracted hemp plants and has been found to provide a “high” distinct from that experienced from Delta-9, while still falling under the 2018 Farm Bill’s definition of “hemp.” While the Drug Enforcement Administration (the “DEA”) has not made a binding determination of the federal legality of products containing Delta-8 THC, in the DEA’s recently released “Orange Book,” Delta-8 THC is listed as another name for Tetrahydrocannabinols, which is listed as a Schedule I controlled substance under the federal Controlled Substances Act. This recent development seems to run afoul of the Controlled Substances Act’s definition of Tetrahydrocannabinols which “does not include any material, compound, mixture, or preparation that falls within the definition of hemp” set forth in the 2018 Farm Bill. In other words, while Delta-8 is “another name” for Tetrahydrocannabinols, its presence in any quantity in federally legal hemp plants provides a risky grey area for brave cannabis producers to work—and profit—within. Fifteen states have already implemented restrictions on Delta-8 THC products and other states are taking steps to follow suit.
The ever evolving cannabis industry has experienced major developments in 2021 and the trend is expected to continue. Just this year, five U.S. states have legalized recreational cannabis use, Mexico has taken a big step towards legalization setting itself up to become the largest legal cannabis market in the world, and two pieces of U.S. federal legislation have been revived, the Marijuana Opportunity Reinvestment and Expungement Act (the “MORE Act”) and the Secure and Fair Enforcement Banking Act (“SAFE Banking Act”).
CBD and CBD-containing products are ubiquitous, yet there is significant misunderstanding about their regulatory status. CBD is cannabidiol, one of more than a hundred different active compounds that can be derived from the hemp plant. The 2018 Farm Bill changed the legal status of hemp, separating it from the Schedule 1 substance known as “marihuana” under the Controlled Substances Act. The effect was to decriminalize the plant that meets the definition of hemp, as well as its derivatives. But, as the Food and Drug Administration (FDA) was quick to point out just hours after the President signed the bill, FDA’s requirements relating to food, beverages, dietary supplements, cosmetics and other products regulated by the federal Food Drug and Cosmetic Act (FD&C Act) were not modified.
The global pandemic, stay at home orders, and government issued lockdowns did not stop 2020 from being yet another active year for new regulatory activity and litigation targeting the food, beverage and supplement industries.
U.S. COVID-19: OSHA Issues Guidance Addressing Mitigation and Prevention of COVID-19 in the Workplace
As part of President Biden's first executive actions, on January 21, 2021, the president ordered the federal Occupational Safety and Health Administration ("OSHA") to issue new science-based guidance to protect workers and enhance workplace health and safety during the Covid-19 pandemic. In compliance with this executive order, on January 29, 2021, OSHA issued new guidance to help employers better identify risks of being exposed to and/or contracting COVID-19 and to ascertain appropriate control measures employers can implement to address those risks. The guidance, titled "Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace," ("Guidance") contains advisory recommendations and reinforces already existing mandatory safety and health standards. This Alert provides an overview of this new federal Guidance and highlights important considerations for employers.
The California Proposition 65 warning requirement for THC took effect on January 3, making cannabis, hemp and CBD products a likely target for private enforcement actions.