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  • Writer's pictureEapen Thampy

Federal Update - "Total THC" proposed to replace D9 THC in statute

This week we got a look at the future of hemp regulation in the US with the US Senate introduction of the Cannabis Administration and Opportunity Act (CAOA), which was the feature of a hearing in a subcommittee of the Senate Judiciary Committee, and a second hearing on hemp industry issues by the House Agriculture Subcommittee on Biotechnology, Horticulture, and Research in preparation for the drafting and passage of the 2023 Farm Bill. Both the CAOA and proposed language for the 2023 Farm Bill propose changing the federal definition of hemp by replacing limits on "Delta-9 Tetrahydrocannabinol" to "total Tetrahydrocannabinol". These proposals would functionally eliminate the current legal markets in hemp THC isomers and hand that market whole sale to the marijuana industry, which currently only exists on a state by state basis, mostly controlled by intrastrate cartels.

Currently there does not appear to be any significant voice for the THC isomer industry; in fact, the US Hemp Roundtable has lobbied for these changes. The Cannabis Regulators Association has also weighed in support of these proposals.

While these developments are concerning, passage of either of these proposals is at least a year away, meaning we have time to engage in a vigorous campaign to influence Congress to continue the status quo legal status of these products.

Please reach out to us at to discuss ways to protect the legal hemp THC isomer industry.


Section 803 (2) of the CAOA proposes "(2) in subparagraph (A) (as so designated), by 3 striking ‘‘with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.’’ and inserting the following: ‘‘and any products made or derived from such plant or parts, with a total tetrahydrocannabinol equivalent concentration of not more than the allowable tetrahydrocannabinol equivalent amount described in subparagraph (C)."

Section 803 (2)(C) reads "Subject to clause 21 (ii), the allowable tetrahydrocannabinol equivalent amount referred to in subparagraph (A) is— 24 ‘‘(I) except as provided in sub25 clause (II), 1 milligram of total tetrahydrocannabinol per 100 grams 2 on a dry weight basis (or a proportionate amount of any fraction there of); and 5 ‘‘(II) in the case of any specified plant product described in clause (iii), 0.7 percent total tetrahydrocannabinol equivalent on a dry weight basis."

Additionally, Section 803 (2)(B)(ii) reads "‘‘(ii) EXCLUSION OF ISOMERS.—The Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Attorney General, may exclude 1 or more isomers of 15 tetrahydrocannabinol from the definition under clause (i)."

While this last proviso seems to provide some hedge to allow the continued legal operation of the legal hemp THC isomer industry, it does not seem likely a future HHS secretary will easily make such exclusions.

House Agriculture Subcommittee on Biotechnology, Horticulture, and Research

The video of the hearing is available here, and the witness list is here. Testimony from Eric Wang for the US Hemp Roundtable included this statement: "Further, some struggling farmers and businesses have pivoted to market intoxicating products such as Delta-8 THC, prompting FDA and CDC warnings that they pose significant consumer health and safety risks, particularly for minors. A clear regulatory pathway for CBD would not only relieve the economic pressure that is leading to this product shift, but it would also help ensure products do not contain intoxicating hemp ingredients." Testimony from Kentucky Agriculture Commissioner Ryan Quarles included this statement: "Should Congress consider revising the federal definition of hemp plants, we urge it to raise the THC threshold from 0.3% to 1.0%. At the same time, it would be appropriate for the new 1.0% limit to include not only delta-9 THC, but every other THC isomer which could have an intoxicating effect on consumers, including without limitation synthetically created delta-8, delta10, delta-7, HHC, and others. Embracing a “total THC” standard instead of a “delta-9 THC only” standard will establish a threshold which better reflects the material’s true intoxicating potential. In addition, Congress should consider adopting a separate definition for consumer-ready hemp products. The current law’s definition is focused on the chemical compounds within the hemp plant at the time of its harvest in the field or greenhouse; it is not a useful yardstick for measuring the intoxicating potential of consumer products that are intended for human consumption such as gummies, liquids, vapes, or “smokeables.” For consumer products, we believe a separate legal standard is needed. And that product standard needs to focus on quantities, not percent concentration by weight. To illustrate, a candy bar weighs about 1.76 ounces, which converts to 50,000 milligrams (mg). If that same candy bar’s THC concentration was 0.3%, it would contain 150 mg of THC. By comparison, a typical “adult-use” THC candy bar made with marijuana contains only 100 mg of THC and is recommended to be consumed in 4 or 5 time-separated doses. Some literature recommends that chronic pain patients should start with a 2.5 mg dose of THC and consume no more than 40 mg of THC each day—considerably less than the 150-mg candy bar that could be made from hemp-derived THC and yet remain below a 0.3% THC concentration limit. For this reason, if Congress’s goal is to eliminate or at least mitigate the intoxicating effects of consumable products made from hemp, we believe that it makes little sense to regulate a consumer product’s THC content in percentage or concentration terms. The better approach would be to limit THC content in terms of quantity, like milligrams, with a numerical cap in milligrams that is sufficiently modest as to eliminate or at least mitigate its intoxicating effects. In Kentucky and other states, there is considerable confusion about whether existing federal law’s definition of hemp serves to legalize synthetic compounds that were made in a laboratory. I am referring to delta-8 THC products as well as many other newer products, many of which contain synthetic THC levels and byproducts in levels that are harmful to consumers’ health, but also other synthetic compounds such as such as delta-10 THC, THC-O, HHC, and others which we expect to proliferate in the coming months and years unless Congress draws a clear line separating natural hemp products (containing only those chemical compounds which were extracted from the hemp plant) from synthetic products (which contain intoxicating chemicals created in a laboratory). A good starting point would be a revised definition which retains the word “extracts” but eliminates the word “derivatives”—because that word has been at the center of litigation in Kentucky and other jurisdictions.

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