This article was originally published on Vicente Sederberg and appears here with permission.
Hemp was federally legalized nearly four years ago. Since then, the industry has dealt with constantly changing rules, despite being in regulatory purgatory due to snail-paced progress from the U.S. Food & Drug Administration (FDA). After all this time, the FDA has yet to develop a regulatory framework for legal hemp in consumer products. And, in 2021, we experienced more painfully slow progress from the FDA in conjunction with the increased popularity of Delta-8 THC and other minor cannabinoids, which contributed to an even more complex and impractical state patchwork of regulations than what previously existed.
Going into 2022, the patchwork includes varying state definitions of permissible THC content, serving size limits, and differing standards as to what may be considered synthetic or intoxicating. With the market moving faster than the FDA, there’s a dire need for consumer trust and safety and regulatory certainty. The untenable status quo has contributed to further congressional action, as three bills seek to allow hemp as ingredients in food and/or dietary supplements and others would address FDA hemp regulation as part of broader cannabis reform, detailed below.
Remarkably, multiple federal proposals for full cannabis legalization were put forward in 2021 that would establish a regulatory framework for the whole plant—regulating hemp separately from cannabis. Since the industry and government are considering how the whole plant should be best regulated, some lingering questions will remain at the forefront of the debate in 2022.
What is the role of the FDA in regulating cannabis; should this be different than hemp?
Should cannabis be regulated like alcohol?
Where do “intoxicating” hemp products fit?
How is “intoxicating” defined?
Can and will the FDA establish adequate safety standards?
While federal regulatory approaches are considered and the FDA remains largely absent, state hemp regulations will become more complex—simply out of necessity. And the successes and failures of the various state hemp programs—and relevant data arising out of them—will inform the most effective federal regulatory approaches. With years of data, state hemp testing laboratories will become very important. Additionally, the state models, from New York’s approach to regulating “cannabinoid hemp” as its own category and Oregon’s “mini FDA” approach, to major …