Justice Department Researcher Questions 0.3% THC Limit For Hemp, Saying Federal Law Based On 1950s Anecdote

A person would need to “smoke a joint the size of a telephone pole” to get high from hemp, even if it marginally exceeds the 0.3 percent THC threshold that separates the federally legal crop from prohibited marijuana, a Justice Department researcher says.

It’s part of what makes the federal definition of hemp, as set out in the 2018 Farm Bill, a bit perplexing. While the intent of the low THC standard is to prevent people from accessing an intoxicating product, the origin of the specific 0.3 percent rule doesn’t appear to be especially grounded in science.

“It’s just a really hard line, and it’s a really low line,” Frances Scott, a physical scientist at the National Institute of Justice (NIJ) Office of Investigative and Forensic Sciences under DOJ, said in an episode of the Justice Today podcast that was posted this month.

In 2022, Scott helped lead a study that involved testing dozens of products that are marketed as legal hemp. The findings, published in Police Chiefs Magazine, revealed that the “vast majority” crossed the 0.3 percent THC threshold, making them “legally marijuana.”

“Some of these were like 0.35 percent, 0.4 percent, okay? So they’re really tiny amounts,” she said. “The implication is, this is legitimate farmers legitimately trying to grow hemp. They’re not trying to grow illicit marijuana and get you high because, quite frankly, you’d have to smoke a joint the size of a telephone pole to get much off of that 0.35 percent, right?”

“It’s sort of fascinating where that 0.3 percent came from, too. It seems to have come from, like, one mention hypothetically in an article from the 1950s, and kind of got picked up and run with,” Scott said.

The specificity of the 0.3 percent delta-9 THC by dry weight definition also creates complications when it comes to non-flower products like “lotion or an oil,” the researcher explained.

The NIJ podcast conversation hits on a topic that’s likely to be reared again in Congress this year, as lawmakers get back to work on the next iteration of the Farm Bill after the prior version was extended.

The Congressional Research Service (CRS) recently outlined how differing policy priorities among industry stakeholders could complicate the task, but there are several areas of agreement within the top industry groups.

One of those shared interests is amending the law to raise the THC limit to one percent for compliant hemp—a proposal that was also addressed in a standalone bill from Rep. Chellie Pingree (D-ME) in 2022.

There have been a number of other hemp bills that were filed this session that lawmakers may also consider folding in to the broader agricultural legislation.

One bipartisan bill filed last March seeks to end what critics say is a “discriminatory” federal policy that bars people with prior felony drug convictions from owning or leading legal hemp businesses.

Another measure introduced with bipartisan sponsors last year would reduce regulations on farmers that grow industrial hemp for non-extraction purposes.

Top of mind for other hemp stakeholders and legislators is their interest in finding a regulatory pathway to allow for the lawful marketing of hemp products like CBD oil as dietary supplements and in the food supply. The Food and Drug Administration (FDA) has regulatory jurisdiction over that issue, but at the beginning of the year, the agency said it didn’t have a pathway to make it happen and instead offered to work with Congress on a solution.

In response, Sens. Ron Wyden (D-OR), Rand Paul (R-KY) and Jeff Merkley (D-OR), along with Rep. Earl Blumenauer (D-OR), filed legislation last July that would remove regulatory barriers that FDA claims prevents it from allowing CBD marketing.

Meanwhile, recent reporting could prompt additional reform proposals, as it’s come to light that USDA has been revoking certain hemp licenses for businesses that dually retain state licenses for marijuana.

For the time being, the hemp industry continues to face unique regulatory hurdles that stakeholders blame for the crop’s value plummeting in the short years since its legalization. Despite the economic conditions, however, a recent report found that the hemp market in 2022 was larger than all state marijuana markets, and it roughly equaled sales for craft beer nationally.

Congressional Researchers Detail Limitations Of Marijuana Rescheduling For State Markets And Criminal Justice Reform

Photo courtesy of Brendan Cleak.

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