Is CANNRA the New Face of Cannabis Prohibition?
For anyone in the cannabis industry who has not spent the last six months in a sensory deprivation chamber, the imminent expiration of the Agriculture Improvement Act of 2018 (the “2018 Farm Bill”) at the end this month likely brings feelings of anxiety, hope, and concern for the future of cannabis in the US. This is because the 2018 Farm Bill broadly legalized cannabis in the form of “hemp”, which is defined in 7 U.S. Code § 1639o(1) as
[T]he plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 THC concentration of not more than 0.3 percent on a dry weight basis.
I routinely hear arguments from so-called cannabis advocates, including CANNRA (more about that organization below), that Congress never intended for “hemp” to include the wide array of hemp products currently on the market. These arguments fail for at least two reasons. First, Congress explicitly intended to legalize hemp farming. As I discuss at length in a recent article I wrote for Salon.com, protecting hemp farmers and promoting hemp production necessarily requires an end market for hemp: “The hemp-centric wellness and consumer packaged goods (CPG) sector stands as one of hemp’s most dynamic markets. It is currently experiencing a rapid expansion. Hemp products, including edible, topical and inhalable goods, enjoy widespread availability and popularity across the nation.” In other words, it does not make any sense that Congress legalized hemp and hemp farming in the abstract without reference to the end markets on which hemp production relies. Given that the CPG sector is the primary (and maybe the only) current viable commercialization opportunity for hemp, it follows that Congress both anticipated it and encouraged its growth. The hemp CPG sector was already strong and growing in 2018 as a result of the hemp provisions of the Agricultural Act of 2014 (the “2014 Farm Bill”) and Congress doubled down in response to support the emerging sector by expressly expanding the definition of hemp to include its cannabinoids, extracts, derivatives, isomers, etc. [Note: I am a strong supporter of hemp for non-CPG purposes, and believe that its fiber, remediation, and other uses have strong potential, but they are currently in their infancy, and these non-CPG sectors can best realize their commercially-viable potential through continued expansion of hemp in all directions, including the CPG sector.]
The second reason the argument that Congress never intended for hemp to include the array of hemp CPG products currently on the market fails is that the definition of “hemp” is incredibly specific about the very things that such a market requires. As I mentioned above, the legal definition of hemp goes to great lengths to ensure that “all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not” are lawful, provided that their delta-9 THC concentrations do not exceed 0.3% by dry weight. Had Congress simply wanted to legalize so-called “industrial” uses of hemp, rather than CPGs, it would not have been so specific in clarifying the legal status of the very things that the CPG sector requires but that industrial uses do not. In other words, Congress clearly intended to legalize and promote a broad CPG sector. I should note that the fact that the FDA has placed obstacles in the way is clearly in opposition to Congressional intent, not due to it. This is evidenced by recent hearings in which members of Congress decry FDA’s inaction on CBD and hemp-derived products, summed up by this “Key Takeaway”: “The public needs the FDA to do its job and regulate CBD for the benefit of industry, farmers, businesses, and consumers alike.“
Contrary to cries that hemp-derived products were never intended, the opposite is true: Congress specifically intended to create the national hemp-derived CPG sector that we see today. This sector has successfully broken through decades-long taboos and prohibitions about cannabis, expanded cannabis access to Americans throughout the country, spurred an industry in which family farmers and small businesses currently thrive, created thousands of jobs, and generally taken the torch of cannabis reform, and it has brought us to a place in which cannabis is more widely available, better understood, and economically beneficial than at any other time in US history. Notably, the hemp industry has accomplished this at a time when real “marijuana” reform continues to stagnate at the federal level, “marijuana” companies are failing under the weight of onerous regulations, “marijuana” felons remain in prisons, and the country as a whole resembles a block of Swiss cheese or a patchwork quilt when it comes to the state by state “marijuana” laws. When it comes to real cannabis reform, hemp is where it’s at.
In the current climate, to be pro-cannabis is to be pro-hemp, and vice versa. Unfortunately, many so-called “marijuana” advocates can no longer really say they are pro-cannabis. Although the marijuana lobby encompasses an array of multinational corporate interests primarily focused on protecting their monopolies, one group stands out as particularly anti-cannabis, the newly formed Cannabis Regulators Association, which goes by the name “CANNRA”. This group is composed of marijuana regulators and government representatives. CANNRA’s stated mission is, “to convene, educate, and support governmental jurisdictions responsible for implementing cannabis policies and regulations.” Unfortunately, CANNRA is playing out its mission by attempting to restrict the expansion of cannabis and to protect its members and the multinational corporate interests that its members regulate. With most Americans now favoring widespread access to cannabis and a broad cannabis industry emerging in the form of hemp, both of which it opposes, CANNRA has emerged as the new face of cannabis prohibition.
This brings us back to the 2018 Farm Bill’s successor. On September 15, CANNRA sent a letter to Congress calling for “modifications to the Farm Bill to address hemp-derived cannabinoid products”. These proposed “modifications” are mostly draconian and anti-hemp, which is to say anti-cannabis. I encourage you to read the letter, which can be done by clicking here or below. In particular, CANNRA proposes a new definition of “hemp”:
The term “hemp” means the plant Cannabis sativa L. and any part of that plant, whether
growing or not, with a total tetrahydrocannabinol concentration of not more than 0.3 percent in the plant on a dry weight basis. The term “hemp” does not include viable seeds from a Cannabis sativa L. plant if that plant exceeded a total tetrahydrocannabinol concentration of 0.3 percent in the plant on a dry weight basis.
Notably, CANNRA’s proposed definition removes the broad language regarding cannabinoids, extracts, derivatives, etc. included in the 2018 Farm Bill that I discussed above. Also, with regard to seeds, it takes a position that is more restrictive than the DEA!
In summary, if enacted, CANNRA’s proposed definition of “hemp” and its other proposals would destroy thousands of small and mid-sized legal businesses, end the jobs of many thousands of employees of hemp businesses, terminate the end markets that hemp farmers rely on for their crops, remove legal access to cannabis from millions of Americans, and preserve a monopoly by a handful of multinationals on a plant that is easily grown and which should be (and is currently almost) fully available to most people. Rather than scrapping dysfunctional state-level marijuana regulations and focusing on reasonable federal level regulations for hemp that ensure quality and age-gating, CANNRA has decided to double down to preserve its turf and the small but powerful group of companies it regulates. This is short-sighted and decidedly anti-cannabis.
If you care about real cannabis reform then you should let your elected representatives know that retaining the current definition of “hemp” as contained in the 2018 Farm Bill is vital and that prohibitionist and monopolistic policies, such as those promoted by CANNRA, should be ignored. Here is the CANNRA letter I referenced above:
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September 26, 2023
Rod Kight is an international cannabis lawyer. He represents businesses throughout the cannabis industry. Additionally, Rod speaks at cannabis conferences, drafts and presents legislation to foreign governments, is regularly quoted on cannabis matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the cannabis industry. You can contact him by clicking here.
Excellent article.
There is a common attitude and narrative by state regulated marijuana companies and regulators that state legal marijuana is legitimate, and hemp derived cannabinoids are illegitimate. Though in the context of federal law, exactly the opposite is true. Hemp is federally legal, state regulated marijuana is federally illegal. CANNRA would love to move all cannabinoids under the large corporate monopolies which have been created by state markets. They are actively trying to use the 2023 Farm Bill to accomplish this.
Andy,
Thanks for your comments. I agree with you. Hemp is unfairly and inaccurately portrayed as an illegal/illegitimate industry despite the fact that hemp is not a controlled substance and hemp products are lawful in some form in all 50 states. Meanwhile, the “marijuana” industry is plainly illegal under federal law. In addition to painting the hemp industry as unsafe and illegitimate, many players in the “marijuana” industry simultaneously want to take all of the cannabinoids for itself. There is room for each industry, and the hemp industry wants reasonable regulations. The problem occurs when the “marijuana” industry portrays the hemp industry as illegitimate, unsafe, illegal, and ultimately wants to destroy it. This cannot occur and I appreciate your support.
Rod
This is exactly what is going down now in Minnesota, land off 10,000 small hemp businesses. We aren’t down with what our Office of Medical Cannabis Director is heading up.
Jeff, I understand. The battle lines are being drawn. I only hope that we can pull the entire industry together. -Rod