The Wyden Bill is out - and no, it doesn't limit to only 5mg per serving unilaterally

It's more complicated and frankly more clever than that, and I don't know why the media is reporting it as such

For weeks now we’ve been anticipating Senator Ron Wyden (D-OR) introducing a new version of his (at this point annual) cannabinoid regulation bill. Marijuana Moment scooped the story yesterday and while generally I think the publication does a good job, I’m not sure they got the details right in this one.

Now, I’m not a simple country lawyer. Actually, I’m not a lawyer at all and eventually one of them will weigh in somewhere. I just spend an egregious amount of time reading bills due to the nature of my business. I will note that I scored a 720 on the Reading section of my SATs, and 760 on Writing, and so I make some claim as to the quality of my general reading comprehension skills. Nothing follows is or even could be legal advice, as the likelihood this bill becomes law is unfortunately low (although not impossible! We’ll get to that.)

What does the bill say about cannabinoid limits and states rights?

The bill does prescribe cannabinoid limits, among other things. These limits are prescribed in Section 1105(C)2 - remember that number, it will be important, and include the following:

• Edibles (solid), inhalable products (don’t know how that works with this limit), and topical products, may not contain more than 5mg of d9-THC per serving and 50mg per container;

• Liquid beverages may not contain more than 5mg of d9-THC per serving or 10mg per container.

Now those limits do automatically apply wherever law is not extant regarding milligram limits. Texas, for example, does have regulations regarding some rules around hemp, but not milligram limits. This bill would automatically apply 1105(C)2 to Texas. Same deal in Florida. It would also apply its packaging and labeling rules to these states. However, a state like Tennessee, which allows 15mg servings and 2 servings per 12oz beverage container, could continue with those laws so long as the product sold there is compliant with those rules - this comes from this piece in 1101 (9) (A), which reads:

‘‘A cannabinoid product shall be deemed to be adulterated if—

To paraphrase, this is saying that it is considered adulterated if it exceeds the amounts in 1105(C)(2) unless it is sold in a State which prescribes the otherwise allowable amount. This means a State like Virginia, which has a cap at 2mg of THC (unless you have 25:1 THC:CBD) can restrict to that cap, or a state like Tennessee which limits to 30mg in a 12oz beverage could keep that. States lacking any rules around milligram limits would default to 5mg x 2 servings for beverage or 5mg x 10 servings for other products.

There’s some debate about this, but this is my plain reading of this bill. Section 1109(B) mentions restrictions around diverting from federally mandated packaging and labeling rules, but as far as I read it does not prevent these milligram limits from being either constricted or raised by any given state.

This is a long bill, and there’s a lot more to it. There are specific penalties for sales to minors, a 2 year time frame to let the government decide how to deal with DTC sales (if allowing them at all), and a host of other details.

However, I wanted to write on this part of the bill because I know it will be purported by many in the hemp industry as a 5mg limit kneecapping everyone instead of what it is - a states rights’ bill. I think it is worthy of considering.

What are the politics of this bill, and what are its chances of passing?

Well, simply put, the chances are pretty low. They’re not zero. They’re not very high. Right now, the biggest challenge this bill faces is having any support outside of the Democrats who introduced it. With 60 votes in the Senate and 217 in the House to achieve and very few of those accounted for, it’s hard to say what the path is here.

That’s the bad news. The good news is that we now have a vehicle to rally around. A lot of the hemp industry will hate this bill as it leaves a lot of work to be done. States will need to get their houses in order and anyone who has spent substantial time at statehouses knows that it can be messy and complicated - hence New Jersey failing to actually implement a law on this about 3 years running

Cantrip will be substantially hampered if this bill were to go into effect tomorrow as our largest markets and best selling products would not be permitted to be sold under this law until we passed legislation in those marketplaces. Still, I support the current form of this bill, and others should to.

This bill would:

1. Undo the ban on CBD products that are critical to so many for real health and wellness purposes;

2. Create a strong hemp products marketplace for farmers to sell to;

3. Create, for the first time in American history, a real regulatory framework for selling THC products at a federal level, including all ingestibles;

4. Fully ban synthetic and even artificial cannabinoids;

5. Create packaging and labeling guidance badly needed to have uniform manufacturing amongst the state;

6. Protect states rights and your ability to fight for your business and/or medicine at the local level, a process that has so far frequently worked out in hemp’s favor.

The ban on even artificial cannabinoids raises some questions about the economics of all this I’ll need to explore at a later date, but this is a good foundation.

Inevitably, even if this bill passes, it will not be identical to what we see today. Bills get amended inside and outside of committees.

I believe this bill will go through the Energy & Commerce committee in the House where a similar version is likely to be introduced; I’m less clear on the path in the Senate. However, there is only one way this bill moves anywhere: and that is activating a grass roots campaign.

There’s really only two ways to get new support for a bill - the first, and easiest, is to have support from Congressional leadership and the White House. If Mike Johnson and John Thune were the ones introducing this bill, it’d be done by spring.

To get others and leadership on board, Congress needs to know how much this matters to real people - and it has to be millions of people. If this is going to pass, it’s going to need one of the biggest PR and grass roots activism campaigns cannabis has ever seen. That’s a tall order, and a tough one to contemplate when you have Instagram accounts like [@]ganjaleaks purposely spreading misinformation that this bill will ban 95% of hemp products and hand the industry over to Big Alcohol.

But it is possible. It will take real consideration and compromise. So the question is this:

Are you ready to get to work?

Cheers,

Adam

As always, you can find me on Twitter and Instagram as [@]cantripguy, and you find my brand [@]DrinkCantrip on Instagram or at drinkcantrip.com