The new limit reflects the need for a more nuanced approach. Why is 0.3% the legal limit for the amount of THC present in CBD and hemp? Turns out, it’s somewhat arbitrary. Join Bluebird and learn more.
The ‘THC In Milligrams’ Limit: A New Approach To Regulating Hemp Products
The new limit reflects the need for a more nuanced approach.
Ensuring that a finished hemp product contains no more than 0.3 percent total THC is no longer the only “THC limit” mandated by states that regulate these products. In the past year, the hemp industry has seen a growing number of state regulators propose and adopt “THC in milligrams” limits.
Oregon is the latest state to have jumped on the bandwagon. Earlier this summer, Gov. Kate Brown signed into law HB 3000, an omnibus bill covering a wide range of hemp-related issues. One of the most significant provisions under this new law is a restriction on the sale of specific consumable hemp items, namely “adult use cannabinoids” and “adult use cannabis items,” to anyone under 21.
The HB 3000 definition of “adult use cannabinoids” includes but is not limited to:
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tetrahydrocannabinols, tetrahydrocannabinolic acids that are artificially or naturally derived, delta-8-tetrahydrocannabinol, delta-9-tetrahydrocannabinol, the optical isomers of delta-8-tetrahydrocannabinol or delta-9-tetrahydrocannabinol and any artificially derived cannabinoid that is reasonably determined to have an intoxicating effect.
“Adult use cannabis item,” on the other hand, means:
A marijuana item;
An industrial hemp commodity or product that meets the criteria in OAR 845-026-0300; or
An industrial hemp commodity or product that exceeds the greater of:
A concentration of more than 0.3 percent total delta-9-tetrahydrocannabinol; or
The concentration of total delta-9-tetrahydrocannabinol allowed under federal law.
In addition, the new Oregon law tasked the Oregon Liquor and Cannabis Commission, in collaboration with the Oregon Health Authority and the Oregon Department of Agriculture, to establish the concentration of adult use cannabinoids at which a hemp commodity or product qualifies as an adult use cannabis item. To respond to the urgency that the Oregon legislature placed on this issue, the commission implemented this rule through the temporary rule-making process just three days following the enactment of HB 3000.
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Pursuant to OAR 845-026-0300, an industrial hemp commodity or product is an adult use cannabis item if it:
- Tetrahydrocannabinols or tetrahydrocannabinolic acids, including delta-9-tetrahydrocannabinol or delta-8-tetrahydrocannabinol; or
- Any other cannabinoids advertised by the manufacturer or seller as having an intoxicating effect;
Contains any quantity of artificially derived cannabinoids (i.e., “a chemical substance that is created by a chemical reaction that changes the molecular structure of any chemical substance derived from the plant Cannabis family Cannabaceae”); or
Has not been demonstrated to contain less than 0.5 milligrams total delta-9-THC when tested in accordance with Oregon law.
The new regulation further provides that if the hemp commodity or product qualifies as an adult use cannabis item it cannot be sold or delivered to a person under 21, unless it is sold by an OLCC-licensed marijuana retailer that is registered to sell or deliver marijuana items to a registry identification cardholder who is 18 or older or to anyone registered under the state’s medical marijuana program.
This 0.5 mg limit is a major change because determining the amount of THC in milligrams (weight) in a hemp product or commodity is different from using the overall percentage of THC contained in the product.
To help hemp companies determine whether their hemp commodity or product is below the 0.5 THC in milligrams threshold, the three Oregon agencies released joint guidelines that, in part, explain how to perform the calculation. Here is how it works: A company must multiply the THC in mass (mg/g) found on their product certificate of analysis (COA) by the weight of the item listed on the package. More simply put, if their hemp item weighs 1 g and the THC listed on the COA is 3.3 mg/g, then the total THC would be 3.3 mg (3.3 x 1), which means the hemp item could not be sold to a minor because it contains more than 0.5 mg of THC.
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While these temporary regulations prevent hemp companies whose products exceed the 0.5 mg threshold from selling their products to minors, they do not affect other sales and business activities. This may change when the OLCC goes through the formal rule-making process in the months to come.
Other states, however, prohibit the overall sale of finished hemp-derived products if they exceed their THC in milligrams limit. For instance, any processed industrial hemp product intended for human or animal consumption sold in Alaska must contain no more than 50 mg of delta-9 THC per individual product.
These THC in milligrams limits reflect the need for a more nuanced approach to regulating hemp-derived products, particularly hemp-derived THC products, which offer intoxicating effects and have gone largely unregulated. In addition, these rules reveal that, once again, state regulators are taking the lead in resolving federal statutory ambiguities surrounding hemp, which, though needed to avert a public health crisis, will most certainly exacerbate the confusing regulatory framework of hemp-infused products.
Nathalie Bougenies chairs Harris Bricken‘s hemp CBD practice group and focuses her practice on health and wellness, in addition to corporate transactions and regulatory compliance. For the past three years, Nathalie has helped clients navigate the complex regulatory landscape of hemp products intended for human consumption and advises domestic and international clients on the sale, distribution, marketing, labeling, and importation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s “Marketplace.” She also authors a weekly column for “Above the Law” that features content on cannabis policy and regulation and is a regular contributor to her firm’s “Canna Law Blog.” For three consecutive years, Nathalie has been named Rising Star by Super Lawyers.
Why is 0.3% the Legal Limit for THC in Hemp and CBD?
What’s the difference between hemp and marijuana? By legal definition in the U.S., it really boils down to THC content, with the distinction being whether the cannabis crop has more or less than 0.3% THC by dry weight. In most of Europe, the limit is even lower at 0.2%. But where did these legal limits even come from?
For the answer to this question we can look to Canadian Scientist Dr. Ernest Small, who is credited with being the originator of the 0.3% figure.
Let’s Talk Total THC
We’ve heard the allowable 0.3% THC figure, but what exactly does this mean?
“Total THC” in the cannabis plant refers to the amount of both THCA (raw THC, which converts into THC when heated) and THC present. So when we’re talking about total THC content, we’re including both THCA and THC when calculating the percentage in the crop.
To further clarify the definition, “by dry weight,” simply means that the percentage of THC present is calculated in relation to the total plant weight when harvested and dried.
So, now that we’re savvy about the THC, let’s talk about that 0.3%.
The Magic Number
It is widely recognized that this 0.3% THC cutoff for hemp is fairly arbitrary. Like Cinderella’s carriage turning back into a pumpkin at the stroke of midnight, hemp magically turns into “marijuana” by classification once it exceeds this limit.
The 0.3% dry weight figure originated from a scientific research paper entitled Small, E., and Cronquist, A. 1976. A practical and natural taxonomy for Cannabis. Taxon 25: 405-435.
In that paper, Cannabis sativa was defined with “Δ9-THC comprising less than 0.3% (dry weight) of upper, younger leaves, and usually less than half of cannabinoids of resin,” and Cannabis indica as “with Δ9-THC comprising more than 0.3% (dry weight) of upper, younger leaves, and frequently more than half of cannabinoids of resin.”
While the definition found in this paper did also make mention of Cannabis sativa having limited intoxicant ability with Cannabis indica having a higher propensity to produce intoxicating effects, this division between sativa and indica cannabis varieties was not intended to be a prescriptive measure of the plant’s capacity to get users high.
Read: this distinction between hemp and marijuana based on THC limit is not necessarily a factor that can indicate whether a strain will or will not get users high.
Dr. Small explains further on the Cornell University FAQ page. Straight from the horse’s mouth:
“Over the years, I have had many inquiries regarding whether the 0.3% criterion was based on potential for abuse – i.e. the possibility of using hemp to get high.
“No, it was not – the criterion was based on the pattern of variation in the real world: it happens that for thousands of years people have selected plants for fiber (subsp. sativa; low-intoxicant plants) and for marijuana (subsp. indica; high-intoxicant plants), and my studies simply revealed this pattern.”
Despite this, as well as the fact that most cannabis material must contain at least 1% THC to even approach producing psychoactive effects, the Canadian government moved forward using Small’s distinction as the basis for legislation. And, following Canada’s lead, the U.S. moved forward following this same guideline when it started changing regulations around cannabis.
Hemp Going Forward
Dr. Small did also note the challenges the current legal landscape provides for the CBD industry, particularly as hemp with up to 1% THC still offers a world of possible benefits if it is permitted to be produced. Specifically, with regards to CBD production, this 0.3% THC cut-off is particularly limiting as there are few strains that produce high levels of CBD without also producing an amount of THC that exceeds the legal limit.
Because of this, many hemp and CBD companies are hoping to push for an alteration to this limit going forward. In fact, Senator Rand Paul (R-Ky.) introduced a bill to Congress in early 2021 that would change the legal definition of hemp and raise the THC limit to 1%.
His bill, known as the Hemp Economic Mobilization Plan (HEMP) Act of 2020, would mandate testing of the final hemp-derived product rather than the hemp flower or plant itself, and also define a margin of error for testing THC levels. These new stipulations would prevent crops containing more than the 0.3% legal limit from being destroyed, as is mandated under current law.
Congress also instructed USDA that its Interim Final Rule concerning hemp production needed to be improved to protect the ability of farmers to grow hemp without the imminent threat of crop destruction, or the interference of the DEA.
Where to find CBD with less than 0.3% THC
Anything marketed as a CBD product should have less than 0.3% THC by dry weight. Unfortunately, you can’t necessarily always trust what a company says is in their products.
Your best bet for finding CBD products that contain less than 0.3% THC by dry weight is to shop with a company that provides third-party lab test results on each batch of its products. These test results will show the true amount of THC, along with other key cannabinoids, in each product. You can find Bluebird’s lab test results here.
If you need to limit your exposure to THC, you may want to try a CBD isolate or broad-spectrum product. Shop Bluebird’s THC-Free* line here.