Background Information

The 2018 Farm Bill defined hemp as “the plant Cannabis sativa L. and any part of the plant, including all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9-tetrahydrocannabinol concentration that does not exceed 0.3% on a dry weight basis”. This narrow definition of hemp created a regulatory loophole where non delta-9 psychoactive THC isomers and derivatives have escaped federal and state regulation. Under existing Maryland law, hemp-derived non-delta-9-TCH products are not subject to any health or safety standards with respect to their manufacture or sale.

Analysis of Maryland Senate Bill 508

On February 3, 2023, Senators Sarah Elfreth and Brian Feldman introduced Maryland Senate Bill 508 (“Bill“) for the purposes of revising the definitions of “hemp” and “hemp product” in laws relating to Maryland’s Hemp Farming Program and regulating hemp and hemp products in consumable goods. Below are some of the key takeaways from the Bill.

Subtitle 14-301 – Modifying the Definitions of “Hemp” and “Hemp Product”

The Bill amends the above-noted definition of “hemp” to include compounds that occur in the plant Cannabis sativa L. that impart, smell, taste or both smell and taste. Most notably, the Bill states the term “hemp” shall not include any plant or part of a plant intended for use that is regulated under Title 13, Subtitle 33 of the Health-General Article. These modifications may resolve some of the ambiguity now surrounding the regulation of hemp-derived, non-delta-9-THC products. It is intended that such products will soon be regulated by the successor to Maryland Medical Cannabis Commission (“MMCC“), which is to be named the Alcohol, Tobacco and Cannabis Commission (“ATC“). Furthermore, the Bill also seeks to define “hemp product” as a product derived from hemp produced in accordance with Subtitle 14-301 that shall include a plant, or any part of a plant, with a delta-9-THC concentration that does not exceed 1% on a dry weight basis (an increase from the 0.3% permitted under existing law). The proposed increase to the permitted delta-9 THC concentration level should significantly reduce the amount of hemp crops that need to be destroyed because the tested samples are inadvertently above the current 0.3% limit.

Subtitle 14-303.1 – Establishing Restrictions on the Production and Sale of Hemp and/or Hemp Products

According to the Bill, hemp and hemp products may be made into consumable goods if the following requirements are satisfied: (a) the hemp or hemp product is tested by an independent laboratory; (b) the hemp or hemp product meets applicable safety standards; and (c) the delta-9-THC concentration of the hemp product does not exceed 1% on a dry weight basis. Considering the Bill seeks to increase the delta-9-THC concentration of hemp products from 0.3% to 1% or less on a dry weight basis, it is important to note that the Bill does not impose additional restrictions on product dosage, packaging, labeling, or marketing. Absent adequate restrictions, these proposed changes may have the unintended consequences of allowing increased access to highly intoxicating hemp-derived products outside the regulation of the MMCC or the ATC.

On March 2, 2023, this Bill will go before the Education, Energy, and the Environment Committee for further consideration. To access a copy of the Bill, visit https://mgaleg.maryland.gov. If you would like a call to discuss how these developments may affect you or your business, please contact Jonathan Wachs at 301-575-0302 or jwachs@offitkurman.com.