Is Florida Is About to Kill Off Its Hemp Industry?

As legislative sessions across the country continue this spring, we have started to notice an emerging trend among elected officials. Many state senators and congresspersons are being bombarded with requests to clarify, curb, or cancel the rapidly emerging market of mood-altering products containing hemp-derived cannabinoids. We wrote about Virginia’s attempt to regulate these products last week. Short of a veto by the Governor, the future of VA’s hemp industry looks dire.

This post focuses on Florida. We will continue write about states where the hemp industry is under threat from state legislatures and regulators.

YES, FLORIDA IS ABOUT TO KILL OFF ITS HEMP INDUSTRY. HERE’S HOW:

The Sunshine State is attempting to address the popularity of products containing mood-altering hemp-derived cannabinoids. Two bills, House Bill 1475 and Senate Bill 1676 (collectively, the “Bills”), were filed in Florida’s General Assembly on March 3, 2023. These bills (which are identical) address, inter alia, hemp extract and certain regulations surrounding hemp extract.

At present, the Bills provide new and/or revised definitions (underlined below) for Florida’s hemp-derived products marketplace. Specifically, the Bills define “hemp” as:

“the 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 thereof, whether growing or not, that has a total delta 9-tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis, with the exception of hemp extract, which may not exceed 0.3 percent total delta-9 tetrahydrocannabinol on a wet-weight basis. The term does not include synthetically derived cannabinoids.”

Additionally, “hemp extract” is further defined as:

“a substance or compound intended for ingestion, containing more than trace amounts of a cannabinoid, or for inhalation which is derived from or contains hemp and which does not contain controlled substances. The term includes snuff, chewing gum, and smokeless products derived from or containing hemp, but does not include cannabinoids that are synthetically derived or seeds or seed-derived ingredients generally recognized as safe by the United States Food and Drug Administration.”

“Synthetically derived cannabinoids” are defined to mean: “any cannabinoid created by reacting a cannabis- or noncannabis derived extract with solvent or acid to increase the concentration of a present cannabinoid or to create a new cannabinoid not originally found in the extract.”

Finally, “total tetrahydrocannabinol” is defined as: “the sum of all tetrahydrocannabinol isomers, with a concentration of more tetrahydrocannabinol-A multiplied by 0.877, in milligrams per gram multiplied by the labeled weight of the product.”

Clearly the new definitions of “hemp” and “hemp extract” are aimed at prohibiting the distribution of products that contain mood-altering hemp-derived cannabinoids. As many readers of this blog will know, there has been a growing trend among hemp-derived product manufacturers to introduce “compliant Delta-9 gummies” that, while containing less than 0.3% Delta-9 THC on a dry-weight basis, contain a sufficient quantity of Delta-9 THC to have mood-altering effects on the consumers of those products. By amending the definitions of “hemp” and “hemp extract” and including new definitions regarding “synthetically derived cannabinoids” and “total tetrahydrocannabinol” the Florida legislature is seeking to restrict the ability of manufacturers to introduce many hemp-derived products into the stream of commerce.

Additional efforts to regulate these products in the marketplace can be seen in other changes the legislature is making to Florida’s hemp regulations, particularly regarding the distribution and retail sale of hemp extract. For instance, the Bills stipulate that:

“Hemp extract may only be distributed and sold in the state if the product:

“… The batch was processed in a facility that holds a current and valid permit issued by a human health or food safety regulatory entity with authority over the facility, and that facility meets the human health or food safety sanitization requirements of the regulatory entity. Such compliance must be documented by a report from the regulatory entity confirming the facility meets such requirements.”

The Bills mandate that “hemp extract may only be sold to a business in this state if that business is properly permitted as required by this section.” Additionally, the Bills expand on other limitations that were previously in place, such as insisting that certain products be sold only to persons over the age of twenty-one as well as including serving or container size requirements. For reference, the Bills state:

“Products that are intended for human ingestion or inhalation and contain hemp extract may not:

1. Be sold in this state to a person who is under 21 years of age; or
2. Exceed 0.5 milligrams total tetrahydrocannabinol per dose or 2 milligrams total tetrahydrocannabinol per container.”

Finally, the Bills provide additional restrictions on the sale and distribution of “hemp extract” by stating:

“The Department shall adopt rules for:

3. Packaging and labeling requirements that ensure that hemp extract intended for human ingestion or inhalation is not attractive to children.

4. Advertising regulations that ensure hemp extract intended for human ingestion or inhalation is not marketed or advertised in a manner that specifically targets or is attractive to children.

120. The department shall adopt rules pursuant to § 120.54 and § 120.536 to establish tetrahydrocannabinol isomers to include in calculating total tetrahydrocannabinol, which must include, at a minimum, delta-8 tetrahydrocannabinol, delta-9 tetrahydrocannabinol, delta-10 tetrahydrocannabinol, exo tetrahydrocannabinol, and hexahydrocannabinol.”

The Bills are set to take effect on July 1, 2023. These Bills are an existential threat to Florida’s hemp-derived products industry, particularly for manufacturers and retailers of products that will no longer be permitted should these Bills become law. While industry participants should prepare themselves accordingly for the effective date of these regulations, a more pertinent approach to these newfound prohibitions would be to reach out to Florida legislators in order to express your dissatisfaction with these proposed regulations. Click here to find who your Florida legislators are so you can contact them today.

Notably, the Florida chapter of the Healthy Alternatives Association is soliciting assistance donations to defeat these bills. 

Kight Law can provide information on how to push back against these bills, and also to help you navigate the ever-changing regulatory landscape surrounding cannabis products. Click here to schedule a consultation today.

March 9, 2023

This article was written by attorney Philip Snow. Kight Law represents hemp businesses in the US and throughout the world. To schedule a consultation please click here and mention this article.