Rulemaking Updates in Colorado and Oregon

This week, we’re alerting you to important rulemaking updates in two major hemp states:

Colorado

As we’ve shared with you earlier, the U.S. Hemp Roundtable expressed its deep concerns with pesticide testing regulations imposed by regulation in Colorado – which held hemp producers and manufacturers to a higher, more onerous standard than adult-use cannabis. Policymakers listened, and last week, the Colorado Department of Public Health and Environment (CDPHE) announced that the August 1, 2021 implementation date for the modified pesticides testing list is delayed until further notice. The postponement is due to significant supply chain issues for obtaining the necessary equipment and supplies to conduct testing. The new implementation date will be shared once established. And we will continue to press for fairer treatment for hemp.

However, according to CDPHE, “All other industrial hemp testing is required to be conducted at a CDPHE certified testing laboratory facility per the regulation requirements.” This means that companies in Colorado must continue to use a state-certified lab, rather than being able to use a qualified, out-of-state lab. Based on CDPHE’s website, there is only one certified testing lab in Colorado. We are monitoring this issue and whether any testing backlog has developed.

Oregon

As we reported last month, Oregon recently enacted a new law—HB 3000—that purported to follow our philosophy governing the regulatory segregation of non-intoxicating hemp products from intoxicating products like delta-8 THC — the latter to be treated like adult-use cannabis. The law directed the Oregon Liquor Control Commission (OLCC) to set THC and serving limits for these products.

Unfortunately, the OLCC issued a temporary rule, effective immediately, that drew the line of intoxication significantly lower than common practice – at 0.5 mg of THCs such as delta-8 or delta-9.
Specifically, the temporary rule states that an industrial hemp commodity or product (including all edible, tincture, and topical products) is an adult use cannabis item if it:

1. Contains 0.5 mg or more of any combination of:
   1. THCs or THCAs, including delta-9 THC or delta-8 THC; or
   2. Any other cannabinoids advertised by the manufacturer or seller as having an intoxicating effect
2. Contains any quantity of artificially-derived cannabinoids; or
3. Has not been demonstrated to contain less than 0.5 mgs total delta-9 THC when tested in accordance with Oregon statutes 571.330 or 571.339.

Adult use cannabis items cannot be sold or delivered to any person under 21 years of age, except by licensed, registered marijuana retailers under certain conditions.

Oregon regulators published this guidance to educate businesses on the impacts of HB 3000 and the temporary rule. Helpfully, the guidance describes the methodology for determining whether a product contains less than 0.5 mg total delta-9 THC.

Additionally, HB 3000 authorizes OLCC to regulate the processing, transportation, delivery, sale and purchase of artificially derived cannabinoids. Both HB 3000 and the rules temporary define “artificially derived cannabinoids” as “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.” The term does not include:

1. A naturally occurring chemical substance that is separated from the plant Cannabis family Cannabaceae by a chemical or mechanical extraction process;
2. Cannabinoids that are produced by decarboxylation from a naturally occurring cannabinoid acid without the use of a chemical catalyst; or
3. Any other chemical substance identified by [OLCC], in consultation with the authority and the department, by rule.

To reemphasize, an industrial hemp commodity or product is an adult use cannabis item if it contains any quantity of artificially-derived cannabinoids.

We will be studying these provisions, and likely filing comments on this temporary rule. Please share your thoughts with us at 
[email protected].