Will the Hemp Industry Survive the Miller Amendment?: A Lancaster Farming Podcast with Courtney Moran

AgHS's Chief Legislative Strategist Courtney Moran, LL.M., joins Eric Hurlock of the Lancaster Farming Industrial Hemp Podcast and Justin Swanson of the Midwest Hemp Council to discuss the Miller Amendment: a recent addition to the House draft of the 2024 Farm Bill.

Does the Miller Amendment address public safety concerns, as is its stated purpose?

On the podcast, Moran dispels myths about what the Miller amendment could mean for the hemp industry.

Introduced by Representative Mary Miller (R-IL), the "Miller amendment" seeks to address alleged "loopholes" that have allowed for the sale of delta-8 and other alternative intoxicating products practically unregulated.

In March, 21 Attorneys General from around the country signed a statement imploring Congress to close this perceived loophole, saying these unregulated, intoxicating products were packaged and marketed to children.

In a statement on her website, Miller said delta-8 products were being sold in packaging that looks like candy.

“We must stop teenagers and children from being exposed to addictive and harmful drugs,” Miller said.

Many in the hemp industry think this amendment will have unintended consequences that could shut down the industry and destroy the livelihoods of people who are making legal and safe hemp products -- but Moran sets the record straight.

"It's creating a new definition for hemp, which is much more restrictive than what we currently have with the 2018 farm bill, and it actually creates exclusions from that definition. It also creates a new definition for hemp-derived cannabinoid products. And so we have a new definition, and we also have another definition. Amending another definition, that is problematic. But her goals of trying to support and help children or really provide for consumer health and public safety. Those pieces are not within her amendment."

- Courtney N. Moran, LL.M., AgHS

So, what does the Miller Amendment mean for the hemp industry?

While Moran agrees that the new definitions for hemp and hemp-derived cannabinoids proposed by the amendment are concerning, she also responds to the media storm which has claimed that the amendment is industry-killing:

"I wouldn't phrase it as industry killing, no. And I know that is the pretty consistent message that I'm seeing across social media, email messaging, things like that. I do think it's concerning, but it's concerning to me not just what is on the page, but what is not on the page."

- Courtney Moran, AgHS

Watch the full podcast above to learn the full story!

Want to learn more about the Miller Amendment and its impacts on the hemp industry? Read our recent blog.

Click below to read the transcript:

Transcript

EH:

Hello, and welcome to the Lancaster Farming Industrial hemp podcast. My name is Eric Harlock, and I have to admit something to you. I thought I was just going to coast this week. I was going to play a recording of a panel discussion from Noco. So the reason I thought I could coast on this week's show is because I have a lot to do to get ready for this trip to Prague. I'm leaving on Monday to go to the European Industrial Hemp Association's conference and expo. But after I published last week's show, I saw the news coming in about what is now known as the Miller Amendment. Right? What's this Miller amendment? So I knew I had to address that on this week's show.

EH:

So that's what I'm doing. So today we're going to talk to Justin Swanson. He is a cannabis lawyer at Bowes, McKinney and Evans in Indianapolis. He's also the president of the Midwest Hemp Council. I'm also going to talk to Courtney Moran. She's been on the show before. She's from agricultural hemp Solutions. She's based in Portland, Oregon.

EH:

She's also chief legal strategist for the National Hemp association. So we're going to find out what the deal is with this Miller amendment. What was its intention? What are the unintended consequences? How does it affect fiber and grain? What's the deal? Those are generally the questions I'm going to try to answer today. I am also going to check in with Morris Beagle. You know him from the Noco Hemp Expo. Turns out he's also one of the organizers of the hemp conference in Expo in Prague next week. So going to talk to him about that. All that right after these messages.

EH:

This episode is brought to you in part by IND hemp in Fort Benton, Montana, where where they believe in the goodness of hemp. Ind Hemp is a family owned, mission driven and environmentally focused industrial hemp food, feed and fiber company providing new opportunities for farmers and rural communities. Their mission is to provide innovative agricultural products and services to connect American farmers with the pioneers and businesses that see hemp as a way to bring real and lasting change to our communities and planet. Learn more at Ind hemp the KP four hemp cutter introducing a revolution in hemp harvesting setting a new standard for harvesting quality, speed, and efficiency, the KP four prepares hemp for ideal redding and easy on field tedding, raking, and baling. Easy to maintain and designed to withstand the punishments of hemp harvesting. The KP four hemp cart available only@hempcutter.com. all right. And hey, before we get into news nuggets, I want to give a quick shout out to our friends up there in Massachusetts at Impactful Ventures.

EH:

Check them out at impactfulventures.org. all right. So a couple of news nuggets here for you this very last week of May 2024. This first one is about the Drug Enforcement agency, the DEA, and just recently, they've put out an opinion and a form of a letter that redefines hemp to exclude THCA. Here's a story I'm reading on cannabis law pa.com. it says, to meet the federal definition of hemp under the 2018 farm bill, a cannabis product must contain less than 0.3% delta nine THC. Now in a new letter clarifying that limit, a top drug enforcement Administration official says the threshold includes not only delta nine THC itself, but also the related cannabinoid THCA, which is converted into delta nine THC when heated, a process known of decarboxylation. That's super interesting, and I'm curious to see what this means.

EH:

I will talk to our guest, Courtney Moran about this later in the episode. This news nugget is really kind of laying the foundation for the show this week. This is about the Miller amendment. So maybe you don't know what it is, but, you know, they're working on the latest farm bill, and I guess there was a draft in the house that was going up for a vote, and in some kind of procedure, they attached a bunch of amendments to it in the 11th hour, and then it was voted on. And now these amendments are part of that draft language, and it's got everybody upset. I don't mean everybody, but I mean people in the hemp space. There's some folks who were saying this is an industry killing amendment. I don't know what to think yet because I don't understand it.

EH:

Right. So I wanted to talk to some people and, and see what sense I can make. So who is the Miller behind the Miller amendment? Well, it's Mary Miller. She is a representative for Illinois's 15th congressional district. She's been in office since 2021. She serves on the House committee on Agriculture and the Committee on education and labor. She is from a rural district. She has a farming background.

EH:

And her reason for putting this amendment forward is to protect the children from drugs. Here's a quote from a press release on her website. She says, I am so proud my amendment was included to close the loophole that has allowed drug infused THC products like delta eight to be sold to teenagers in packaging that looks like candy. We must stop teenagers and children from being exposed to addictive and harmful drugs, end quote. So, yeah, there you go. That's, that's Mary Miller. And we're gonna find out, like, what unintended consequences this amendment might have. Alright? So hopefully that gives you enough to wade into this mess with me today.

EH:

First we're gonna talk to Justin Swanson, and then we're going to talk to Courtney Moran. And then after that, I'm going to check in with Morris Beagle and we're going to talk about Prague. Here we go. Justin Swanson, welcome to the Lancaster Farming Industrial hemp podcast. How are you doing?

JS:

I'm great, Eric. Thanks for having me.

EH:

Yeah, absolutely. Thanks for, you know, joining the call sort of on last minute. I know after I closed last week's show, all of the stuff with the farm bill kind of happened with the Miller amendment, as it's known now. Now this was. Well, we'll get to that in a sec. I wonder, could you introduce yourself for us, please?

JS:

Sure. My name is Justin Swanson. I'm the president of Midwest Hemp Council, and then also I chair our cannabis practice out of Bose, McKinney and Evans here out of Indianapolis, Indiana.

EH:

Okay. So, yeah, so getting back to this Miller amendment, can you sort of explain it for listeners and, you know, from, from her perspective, what, what issue is it trying to solve? Speaker one?

JS:

Sure. And she, I think Congresswoman Miller made a written statement after the fact. I mean, in her own words, her goal is to protect teenagers and children from drug dangerous drugs like Delta eight, THC.

EH:

Okay. Which are sort of commonly available around the country in weird places that you wouldn't expect. Right?

JS:

Yeah, I mean, I think, look, at the end of the day, the hemp industry has been very vocal on the need for appropriate regulations in order to have longevity in the marketplace. And age gating and age restrictions is a really simple thing that we've been asking for for years. So it's interesting that the hemp industry uses a ding against us, that we don't have the uniform federal regulations we've been asking for, that facts used against us despite asking for that thing for.

EH:

The last six years over and over again. Right. Okay. So trying to protect the children from accessing these things here, but it creates other problems throughout the industry. Can you talk about that?

JS:

It does. So, I mean, it's overreaching an amendment for that goal because it impacts the grain in the fiber marketplaces as well, I think, in my opinion, eliminates the genetic seed stock that farmers have built over the last six years under the broad definition of the 18 farm bill. And I think also it's important to point out the legislative procedure that was used to get this amendment into the farm bill, because keep in mind, we had success in the base tax of the farm bill that Chairman Thompson put out, where it maintained that definition of hemp, which is what we've been asking for, to provide that certainty for farmers to continue to invest in building and rebuilding a domestic supply chain of hemp and hemp products. I think the unique part about this is the ultimate goal, really, was to protect kids and teenagers from dangerous drugs. You know, why wouldn't, why wasn't there a vote on the record for this? Right. Instead, they use a legislative procedure called en Blanc, which they packaged up about 19 total unrelated amendments as one and did a single voice vote on it. Voice vote on that. So.

EH:

But they do that stuff all the time in government, right? I mean, not that that, like, excuses it, that it's still pretty shady. Right?

JS:

Well, I mean, I think typically that process is used for efficiency purposes for non controversial amendments. Right. The idea that this one, this controversial amendment was included in that package, I think just. I think it spills daylight on the process and the fact that maybe that wasn't the true intention or the motivation of the amendment.

EH:

Can you, like, quote the amendment or just tell me what's, what that language is?

JS:

So it's Amendment 35. What it. I mean, it's. It's very, very broad, Eric, so I'd have to, you know, pull it up and walk you through it. But, I mean, ultimately, what it does is it changes the definition of hemp in such a way that eliminates even the idea that the process of fine tuning or filtering or purifying hemp extracts. So even the CBD market, which, you know, everyone supports, I think, right, because it's, quote, non intoxicating, and it's helping improve the quality of life of Americans. Even that market's decimated under this, because what it says is it excludes anything that's manufactured outside of the plant, is no longer considered hemp, and it also goes after the genetic seed stock, like I said, and saying seeds are illegal if they have the potential of going over. I think it's 0.3% total THC.

JS:

Off top of my head. I mean, that's. It's just unworkable, and that's by design. I think they've. This is the shot heard around the world. And the.

EH:

Quite.

JS:

The real question is, what are we going to do about it, and how are we going to organize ourselves as an industry to protect ourselves from market actors who are accustomed to capturing market share through legislation like this rather than through competition.

EH:

Right. So is this, like, big marijuana showing its hand? I've read some reports on the Internet about that.

JS:

Absolutely. And they've been very vocal about it. Right. The US Cannabis Council put out a letter to house ag leadership advocating for any detectable amount of THC to be now a schedule one substance again, whether it's for human consumption or animal consumption. So that eliminates the, you know, the great work the hemp feed coalition's been doing the last couple years to get this approved for as another outlet for our farmers around the country.

EH:

Right, right. It seems reactionary. Right. Like, you know, there was the, the thing with the attorneys general from various states trying to get. And it's. That's related, that that language is related to this amendment. But, like, I'm not sure how. How government corruption works, but, like, big marijuana paid off the congresswoman, like, what, what's the insinuation there? Because I don't see, I don't know much about her.

EH:

I know she's from, like, a rural agricultural district in, like, southern Illinois. So that surprises me that she would be, you know, like, working with the big marijuana people. But again, I am a simpleton, so tell me.

JS:

Yeah, so, I mean, you know, the saying goes, politics makes for a strange bedfellow. So ultimately, we had happen is big marijuana team up with prohibitionists to eliminate, you know, a cannabis marketplace that's called. That we call hemp under, you know, federal and various state laws. I'm not insinuating there's corruption, but look, there's campaign contributions that are totally, you know, that's how the process works. Illinois is a mature marijuana state. Right. And they're actually having this battle right now at the state level. So, you know, a big shout out to the Illinois hemp growers association for taking the charge on that and really trying to bring.

EH:

That's Rachel. Rachel and her crew. Yeah.

JS:

Yeah. Illinois is very fortunate to have a leader like her.

EH:

Rachel Berry.

JS:

Yeah. And the reality is, there's a Venn diagram here, and I think 99% of the hemp industry agrees that consumer protections can be increased and improved compared to how it exists today. The question is, how do you do that? And we're adamantly opposed to the idea that prohibition makes kids and teenagers any safer. In fact, we think that it exasperates the very issue they're trying to, to tackle.

EH:

Oh, absolutely. I mean, just, I, you know, I grew up in the, I was born in the seventies, grew up in the eighties through, you know, the Nancy Reagan just say no to war on drugs, all that stuff. And, yeah, prohibition didn't, didn't alleviate anything. It definitely exacerbated things. So I'll just throw that out there.

JS:

That's right. And so if you, you know, in the absence of FDA regulations or whatever federal agency is going to do it, you know, we've been asking for basically a four pillar approach, which is uniform regulations when it comes to testing, labeling, packaging and age restrictions. That gives, you know, farmers and small businesses around the country, you know, an idea of what your product needs to meet in terms of quality control standards. It also allows states to come over the top on that and add additional requirements they see fit to meet the needs of their marketplace. So without that federal regulation, we've been trying to go state by state in states like Kentucky and Tennessee and Indiana and Georgia. Right. To put forth these common sense regulations that addresses the consumer safety concerns but also makes sure that we're not eliminating people's livelihoods and the future of the hemp industry under a wrong premise. At the end of the day.

EH:

Right. It seems somewhat un american to, you know, let people develop all of these businesses. You know, they're farmers. They're just like, you know, you, the whole CBD story arc for me seemed first surprising and then unfortunate. But, you know, you, I see where, where these markets develop because there was a lot of excess, you know, biomass. And so people are making a livelihood and that's their right to do that, right to be into business, in business for themselves. But on the other hand, I do think it's an issue that you can walk into like a smoke shop here and buy who knows what in a big jar and is it like hemp buds sprayed with it? Just, I have no idea what it is. And not that I go to these places, but I, you know, I do a little research and it blows my mind that all of this stuff is just available.

EH:

Right? Yeah, go ahead.

JS:

I think that's really a manifestation of a lack of regulations and clarity for businesses. So take Indiana for an example. We've been fighting for our farmers the ability to sell hemp flour at retail, right. Because there's consumer demand for it. And it's the most lucrative market for the farmer to be in, is selling that hemp flour at retail, either direct to consumer distributor, whatever way you're doing it. It's a huge, huge roi for them. And there's no middleman. Right.

JS:

When you're selling to a processor, there's a lot of things that can go wrong there in terms of the farmer not seeing what they were promised in terms of returns. Right?

EH:

Yeah. Yeah.

JS:

So Indiana has criminalized a federal legal product, which is the hemp flower at retail. And what has happened is it's still sold all over the, all over the state in gas stations and, you know, smoke shops. There's no quality control standards on the products, there's no age restrictions on the products, and nobody's doing anything about it for the last five years in the state.

EH:

Yeah.

JS:

Begs the question, what are we doing here, right. If the goal is public safety and certainty, that's through regulations. It's not through prohibition. Because at the end of the day, that consumer demand is going to be met. It's just a question of where it's going to be met and how it's going to be met.

EH:

So is this amendment, is it industry killing? Is it sky is falling? This is it.

JS:

Yeah. Look, it's not alarming us at all. I mean, this literally eliminates the existing marketplace today. The good news is Congress is so dysfunctional. We have a lot of time, a lot of time to identify allies, and we do have them in Congress, but it's on us as an industry to show up and be vocal and provide data and education and not just sit back and kind of complain online. Right. Like the question is, what are you going to do about it?

EH:

What are you going to do, right.

JS:

Do you know your congressman? Do you know your senator? Have you talked to him about this yet? You know, the idea that, oh, it's not going to do any good is exactly the attitude.

EH:

Right. That you shouldn't have. Right?

JS:

Yeah, exactly. Right. So, you know, so there is, there, you know, looking back, you know, stepping back from a holistic view, Eric, House is controlled by Republicans, senate controlled by Democrats. There is a huge, huge gap in terms of priority in that spending bill for farm bill. Right. It's about a right now $1.5 trillion package coming out of the House. So lucky for us, hemp is not a big priority for people. Right.

JS:

Even though, like us living in this world, it's, it's literally life or death. But so there is a lot of dysfunction there. So we have a lot of time. The chances of the farm bill getting done this year, I think, are very slim. If it does get finalized, it's going to be in that lame duck session sometime after the November general election and before the end of the year. That's the timeline I see. Otherwise, we're probably getting another extension. And this is going to be a discussion that spills over to the 25 congressional session and perhaps, you know, totally different landscapes.

JS:

Right. The House could flip. It's looking like the House will flip. The Senate may flip to Republicans. And who knows what's going to happen with the presidential?

EH:

Who knows? So you mentioned the fiber and grain sector. You think this is going to have an effect there? And how does this affect, you know, the. I guess it was the hemp exemption or, you know, the 2023 Industrial Hemp act. What does that do to that? How do these things interact?

EH:

Well, so to be clear, that language and the industrial hemp acts remains in the bill. So that language is fine. The reality, though, is they've killed the genetic seed stock supplying the fiber and grain based on that new definition of hemp and the fact that you can't basically sell seeds with the potential of going over 0.3% total THC. So the idea, I mean, the reality is states can already do the performance based sampling. Right. USDA's final regulations allow for states to do that. There are states already doing it. So at the end of the day, this is more about protecting the genetic seed stock that we've developed the last six years from market competitors from shutting down not just the cannabinoid industry, but also the grain in the fiber industry.

JS:

At the end of the day, there are trace amounts of THC and all of that.

EH:

Right. I'm thinking about companies like new west genetics who have been working on THC free varieties and why. Now that looks, again, looks like a pretty good idea, if that's the way the wind's blowing.

JS:

But, yeah, words matter on that in the definition, right. I mean, under the amendment, USDA would set whatever threshold is allowed for, quote, detectable amounts of THC. So right now, there's just way more questions than answers. But clearly, this is a very well thought out amendment from market competitors that have teamed up with prohibitionists.

EH:

Right.

JS:

You know, to end what we've built.

EH:

And well executed timing wise, too, like for maximum effect.

JS:

I mean, again, not to be. I do want to highlight we, you know, in that base text of the farm bill, which is the chairman's version. We survived that. Right. And this was done through a legislative process because in my opinion, they did not have the standalone votes to take an up or down vote on that amendment by itself.

EH:

Right, right. All right. So just wrapping it up. Your sort of call to action for people out there should contact their, their representatives, right?

JS:

Yes. Start. Start an open line of communication. If you don't know who they are, look them up and start asking them questions on, hey, this is what it does to me. Where are you going to be, you know, when, you know, when this issue comes to a head? Because I'm putting on notice. This is what it does to my business and my family and my community.

EH:

Yeah.

EH:

You're from the Midwest. Yeah. Are you from Illinois? Is she your representative? Representative Miller?

JS:

No, I'm actually from Indiana. And so again, it should be noted, we had three republican committee members speak against what was going on. We had Congressman Baird out of Indiana, we had Congressman Nunn out of Iowa, and we had Congressman Van Orden out of Wisconsin. All speak against one, the underlying amendment, and also kind of the process that was used to get to where we are now.

EH:

All right, well, Indiana representing. I spent a little time in Bloomington, and I remember there was a really good burrito shop there. That's it. So. All right, well, Justin Swanson, thank you for sharing your perspective on this with us, and we'll bring you back on the show at some point and see where this farm bill ends up. Okay?

JS:

Yep. Thanks so much, Eric. Appreciate it.

EH:

Courtney Moran, welcome back to the podcast. How are you doing?

CM:

I'm very well. Thank. Thank you so much for having me. Eric.

EH:

Yeah. Could you remind people who you are and sort of the work you do?

CM:

Absolutely. I am an attorney and a lobbyist and also a law professor. I specialize in hemp practice areas and hemp policy development. I have my own law firm, which is Earth Law, LLC, based in Portland, Oregon. And we represent hemp clients primarily in Oregon, but all over the country, and helping them with compliance, licensing, administrative appeals, product seizures, things like that. I'm also the chief legislative strategist for agricultural hemp Solutions, which is a national lobbying firm. We have worked on hemp policy for. Well, I personally worked on hemp policy for the last ten years, but have been a lobbyist, really for the last eight and a half.

CM:

And we are actually celebrating the passage of our 12th bill.

EH:

Nice. Congratulations.

CM:

Thank you very much.

EH:

Yeah. Well, we're talking today on the show about what's known as the Miller amendment. Right. And I think at this point in the episode, people know what that is. So I don't think I need you to explain it to us. But people are, you know, there's headlines out there. It's like, is this an industry killing amendment? Right. Do you think that's what's happening here?

CM:

I wouldn't phrase it as industry killing, no. And I know that is the pretty consistent message that I'm seeing across social media, email messaging, things like that. I do think it's concerning, and it's concerning not only for how the amendment was brought forward in the process, but it's concerning to me not just what is on the page, but what is not on the page.

EH:

Okay. What do you mean by that? Does that have anything to do with, like, her spoken, her being representative Mary Miller from Illinois, like her, you know, intention of this was to protect the children, according to her press release. But there's unintended consequences.

CM:

Yeah. Even in Congresswoman Miller's testimony when they were bringing forth Amendment 35, which to take a step back, that this amendment was part of a, what's called an en bloc, when several amendments are put forward into another piece of legislation. So rather than having time for the committee to review the specific amendment or to have a vote on the specific amendment, it was incorporated with a group of other amendments. So that is obviously problematic specifically for our industry. Another piece problematic in this process is that the discussion draft language that was published the week before the hearing is different language than was the language that was the actual introduced bill of 8467, the Farm Food and National Security act, which is the house farm bill. So the fact that the public language that came out first is different, that this amendment is getting introduced the day before. It's not getting its own time for being heard within the committee. It's not getting its own vote.

CM:

All of those pieces of this are problematic. And then when we get to Congressman Miller discussing her bill, she does say, you know, her goal was to close the loophole, created it with the 2018 farm bill that allowed intoxicating products like Delta Eight. She doesn't want them marketed to children. She wants them to stop being exposed to harmful and addictive drugs and to return the definition of hemp to the congress's original intent around industrial products and not intoxicating products.

EH:

Okay.

CM:

But if we look at the actual language in her amendment, yes. It's creating a new definition for hemp, which is much more restrictive than what we currently have with the 2018 farm bill, and it actually creates exclusions from that definition. It also creates a new definition for hemp derived cannabinoid products. And so we have a new definition, and we also have another definition. Amending another definition, that is problematic. But her goals of trying to support and help children or really provide for consumer health and public safety. Those pieces are not within her amendment.

EH:

Okay, so, like, does she have a plan or she, like, what's, what's happening there? That doesn't seem to make sense.

CM:

That's a. It's a great question that I don't have the answer for.

EH:

Okay, that seems like a major step backwards, you know, to have a new definition and then to have an amendment to an amendment that you're saying. I mean, I'm not a lawyer, clearly. I don't think I'd be doing this if I was a lawyer, but. So I don't really understand how it works. But you're just saying, like, it just makes it complicated or problematic from a legal point of view to have an amendment amending an amendment.

CM:

What's problematic is that the industry has relied on one definition for hemp, well, industrial hemp. In the 2014 farm bill, the industry has relied on one definition for hemp within the 2018 farm bill. That definition has been carried forward into regulations with USDA, with DEA, and on the state level. And, you know, different attorneys have different opinions, and they've utilized that definition to encourage folks to bring different products into the marketplace, whether that's THCA products, different isomer products, things like that. The courts have supported the, you know, certain isomer products being brought into the market and being protected by that definition. Courts, as far as I'm aware, have still not weighed in on the THCA legality. Now, DEA has in the last.

EH:

There's some news there. Yeah, we'll talk about that in a bit.

CM:

But that is what is concerning. Right. And that's what the catchy headlines are about, is that this Miller amendment is changing that definition. It's moving away from a delta nine standard to a total THC standard and then creating different exclusions. I personally don't think that having these exclusions for products is as problematic from removing it from the definition of hemp because other states have done this. States have moved the products out of that definition of hemp, so that hemp is focused on the plant and what's happening on the farm and created separate definitions for extracts, concentrates, things like that, so that there's different regulations at the manufacturing stage and at the product in the retail level stage. Okay, so just moving these products and interim work in progress materials out of the definition of hemp itself, I don't think is the problem, because states have done this to create separate regulatory frameworks. What is problematic is that, and for a variety of reasons, going to total THC, we know this doesn't work on the farm.

CM:

We have been pushing, and I say we, as the collective industry, has been pushing for a 1% total THC level on the farm. We're not getting to that. What's also problematic about her amendment, total THC is not defined. So what she means by total THC, yes, she says it includes THCA, but does it include these other isomers? Does it not? It's not defined. So how this is actually going to impact what's happening in the product level, that's not within the black and white text here. What also we are not seeing in the headlines is that the black and white text does say that the quantifiable amounts for the tetrahydro cannabinols within these products will be determined by the secretary. So those limits are not also set within this amendment. It's left up to rulemaking.

CM:

So if something like this were to actually pass into law, which were very far away from that stage, there are different levels. Right, of things that can be done yet. So there would be rulemaking by the secretary to determine what these quantifiable amounts are. I'm not saying that this is a good amendment. I do think it's very problematic. I just think that the catchy headlines are not really focusing on the details. And what I personally see are the real issues with not only this amendment, but also with the actual text of the act itself.

EH:

Okay. Is there a way to close the loophole that she's talking about without this approach? What other way could this be solved without having these rippling effects across the industry?

CM:

Well, I think you first have to determine, is it something that has to be solved? Right. The term loophole. I've never liked that term. I'm not sure who started that first. We saw letters from Canra a year ago talking about the loopholes. It's looking at definitions and what's happened in the marketplace, and folks finding ways to make things work that theoretically have fallen within the existing frameworks. I wouldn't say all of the products in the market fall within the framework, but some definitely have, and courts have supported that interpretation.

EH:

Okay.

CM:

What the real issue is that I see, based on my conversations with both hemp industry, marijuana industry, law enforcement, and regulators, is really about consumer awareness and public safety and consumer health. Are these products that are going to the marketplace safe? Are these products being marketed to appropriate aged consumers? And so this piece of legislation is not doing that. And yes, there are, of course, concerns between the marijuana and the hemp industry about market share and who has access to particular markets. Right. The marijuana industry is very highly regulated. They have very limited markets. The hemp industry has been able to get out into the general market. But what we have lacked is oversight over these products because FDA has failed to act.

CM:

Right. So we have states that have taken the step to actually create oversight for different products, and now we have a myriad of policies across the country. So it's very challenging for businesses to follow. It's very challenging for law enforcement to even follow and to know, are these products legal or not? And because of that, it's also very challenging for consumers to know, is this product actually safe? And so what we aren't seeing, and, yes, there are jurisdictional issues with the agriculture committee that, you know, they can't be putting out authority for FDA now that we're moving to the house floor. Sure, potentially, we do see an amendment that there could be some actual real oversight over these products. But we aren't seeing testing, we aren't seeing labeling. We aren't seeing age limits. We aren't seeing concentration, real authority put in here.

CM:

Yes, it does say the quantifiable limits for the secretary to determine. So that's as close, I think, as we have seen towards some sort of regulation on concentration limits. But to really address what the consistent narrative is about, we have to regulate for public safety that is not within this bill or this amendment.

EH:

Right. Is this Miller amendment, is it beneficial to the marijuana industry?

CM:

Potentially, yes, absolutely. By going to a total, without total THC being defined, but going to a total THC level across the board? Yes. Again, the limits for products are not defined. And what I was trying to allude at earlier is that if you look at the definition of hemp derived cannabinoid products itself, that has no concentration limits. Right. The definition of hemp is attempting to amend the definition or create exclusions from that definition of hemp for the definition of hemp derived cannabinoid products. So rather than there being specific language or concentration limits within this definition of hemp derived cannabinoid products itself, there's changes to it in a separate definition. That's problematic.

EH:

Okay. Talking to Justin earlier, he alluded to, like, maybe, you know, this is big marijuana showing its hand. What do you think of that?

CM:

I think that we need to look at the facts of what we know. So what we know is that the American Trade association for Cannabis and Hemp attached. They sent letters or a letter to the agriculture committees in November of 2023 talking about the loopholes, the gray market. You know, these products that are on the marketplace that are frustrating their market. Completely understandable from their perspective. You know, I don't necessarily agree with the letter, but they then, in that letter, proposed language that proposes a new definition for products in final form. Now, we also see the USCC, the US Cannabis Council. They sent a letter to the agriculture committees in April of 2024.

CM:

And in there, the USCC says, we have to address the national crisis caused by unregulated, intoxicating hemp products and looking at their perspective on how these different products should be regulated, similar, you know, to alcohol, to the marijuana industry, creating different regulations for non intoxicating products versus intoxicating products. But what's interesting is that they use the exact same language in proposing a new definition for products in final form as detach. It's exactly the same language in both of these letters.

EH:

Okay, do you think they just got that initial email? They're like, hey, this is great. We'll copy and paste it, or you're implying something else.

CM:

Well, it's, you know, it's likely that they're collaborating, right? They. You know, if you start looking at these different organizations, there is overlap between membership, between leadership. We also know that the National Cannabis Industry association, they hosted a lobby day in Washington, DC, the week before the markup in the House ag committee, the same week that the initial discussion draft language was introduced. And that lobby Day was in partnership with Attach. And if we start looking at who is the leadership between and the membership, not only between the cannabis organizations, but also between the hemp organizations, there's overlap. And, you know, we absolutely want transparency, we want collaboration, we want folks working together. Really, we need to get the marijuana and the hemp industries working together. But when we are seeing narratives out in social media and email campaigns and legal blogs where folks are trying to put the blame or credit, however you want to phrase it to one organization and then say, you know, this is the organization likely behind it, go support this other organization to go solve the problem.

CM:

Hard for me to get behind that when I see that the leadership of the cannabis organization is similar to the leadership of the hemp organization, specifically, that the treasurer of the one organization is the president of the other organization.

EH:

All right. And people could google this. They could look around. Okay, yes. Getting back to the Miller amendment and the work that you've been doing for the past few years around what was known as the hemp exemption, but then turned into the 2023 Industrial Hemp act, and that it was announced, I don't know, a couple weeks ago, that that language is in the farm bill draft, how does this Miller amendment, do they interact at all? Does that affect what you've been doing?

CM:

Not at all. So that's also what's been interesting in some of the headlines about how the Miller Amendment impacts grain and fiber. It has absolutely nothing to do with grain and fiber, both in that discussion draft, but also in the introduced bill, which is really what's important, is we have our own brand new definition for industrial hemp. Most of that language did come right out of the industrial Hemp act, but it creates a new definition for grain fiber, microgreens and research. And that definition is separate from that definition of hemp. And it creates a new regulatory framework that does follow very, very closely to the Industrial Hemp act framework. And it sets up the authority for visual inspections, performance based sampling methodologies, and state, tribal and the USDA plan providing for farmers to submit documents to verify their intent of production or for the jurisdictions to require harvest inspection. And then if anyone is violating their designation, that they would have to have strict enforcement and not be part of the program for five years, but also does require testing.

CM:

So just like now. Right. And that's the other thing I think it's important to point out about the Miller amendment. What it's really doing is putting into statute what USDA had already done in rule. Right. USA already said that we are at a 0.3% total thc level on the farm for testing. That's what this Miller amendment does in regards to that broader definition of hemp, not what it did with the product piece. Okay, but, so if someone was found to violate their designation and they had to have material tested that was inconsistent with their definition of industrial hemp, yes, that would be tested at a 0.3 level, but that's the same thing that was happening today.

EH:

So what should people do now?

CM:

Folks need to start really paying attention to the details and not just listening and looking at catchy headlines and, you know, voices that are the loudest right now, they need to ensure that they have a lobbyist that they can trust, that's on their team. If they're concerned, they need to have a lawyer that they can trust, that's on their team that they can call to review these materials. And if they are concerned, they should contact their legislators, contact their members of Congress, and let them know the impact this could have on their business. But hopefully, it's a realistic impact and not just a fear generated narrative. Some people think that this amendment was very well written. I personally don't think it was very well written. I think it leaves a lot of holes. It leaves a lot of questions.

CM:

It's not really addressing the problem that or the issue that Congresswoman Miller says she's out to accomplish and maybe she just isn't aware of that. There are terms that are not defined. There are other issues within the text of the bill itself, not within the amendment, that are going to create other issues. It's going to create issues for folks that potentially have felonies that are growing cannabinoids. It is going to create issues with these new definitions and not having those definitions carried forward within the other apps, whether it's research, crop insurance, transportation, the Controlled Substances act, there's a lot of different issues that I see that go beyond this new proposed definition for hemp within that amendment. 35, the Miller amendment.

EH:

All right. I'm an optimist, and I think everything's going to work out.

CM:

I'm an optimist, too, and I think we need to be very realistic about the stages that we're at. Yes, this language is put into the bill. Yes, this bill was moved out of the House Agriculture Committee. There are many problems beyond the hemp provisions within this bill that are leading to a lot of concern within Congress and with other members within the broader agricultural community and broader agricultural industries. We still have this bill to go to the House floor. There will likely be amendments added to the bill on the House floor. We still do not have a Senate version that is public Senate. A committee will still have to meet.

CM:

They will have markup. They will have to go to the floor and then likely conference committee. So we are still at the very beginning stages. So I am also optimistic that these issues and these gaps in the current draft that we do have can and will be amended. We just need to make sure that folks are supporting organizations that are really going to get them to the goals that they want to see. And folks, I hope, will really just start asking the questions, start looking at who are really within these organizations, who's really sitting at the strategy and the policy table. Is that public narrative really the same narrative as what's happening behind closed doors? Start paying attention to the details. That's what I ask for the industry to do.

EH:

All right. That's good advice. You mentioned briefly, I guess, the recent opinion from DEA on ThcA. Does that have the potential to kill.

CM:

Parts of an industry if you are selling THCA? Absolutely. I would be very concerned about this letter coming out from DEA. And so it was a letter sent in response to an inquiry by attorney Shane Pennington. And Terrence Booth, he sent a response saying that DEA is looking at the legality in the scheduling of THCA, and that from their interpretation, looking at the testing authority within the 2018 farm bill with the phrase using post decarboxylation or other similarly reliable methods, that because decarboxylation converts ThCA into delta nine, that they think that when you're looking at the delta nine level, you must account for the THCA. So from DEA's interpretation that cannabis derived THCA does not meet the definition of hemp.

EH:

All right, there you go. Courtney Moran, it's always great to talk to you.

Check out Courtney's previous discussions with Eric on the Lancaster Farming Industrial Hemp Podcast here.

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