The recent decision by the NM Department of Health’s Medical Cannabis Program to prohibit licensed Medical Cannabis Producers from selling CBD products that are not derived from NM grown hemp has prompted me to look further into the term “hemp” and see how it differs from cannabis. According to the United States Department of Agriculture – National Institute of Food and Agriculture, The Farm Bill, (section 7606 of the Agricultural Act of 2014), covers the federal government’s definition of “Industrial Hemp”:
The term “industrial hemp” includes the plant Cannabis sativa L. and any part or derivative of such plant, including seeds of such plant, whether growing or not, that is used exclusively for industrial purposes (fiber and seed) with a tetrahydrocannabinols concentration of not more than 0.3 percent on a dry weight basis. The term “tetrahydrocannabinols” includes all isomers, acids, salts, and salts of isomers of tetrahydrocannabinols.
Essentially, what this says is industrial hemp and marijuana are both Cannabis Sativa L*, but if it has less than .3% THC it is considered industrial hemp, not marijuana. Besides the THC content, the differences between marijuana and hemp are plentiful, so it is my hope that in time they will be classified as separate subspecies. For now we are stuck in fuzzy political dogma, especially in New Mexico.
The New Mexico DOH may have been within their rights to enforce their new interpretation of the law since hemp and marijuana are both considered C. sativa, and the ability to grow, sell and produce products from any cannabis sativa not originating in NM is the way the rules are written. But why it took so long for them to figure out that hemp IS cannabis sativa is a real mystery. My guess is that they didn’t know Hemp and Marijuana were botanically classified as the same plant, because by the Medical Cannabis Program’s definition in their own rules and regulations, they specifically excluded hemp as a cannabis derived product. Were they just that ignorant? Why they allowed it to be used and sold by Licensed Non Profit Producers in NM since 2010, (when the first licenses in the state were issued), and now they don’t? This raises even more questions. Who will profit from this new interpretation of the law? Is it even valid? Are they trying to protect themselves from some perceived threat from the federal government? Here are three sections from the NM Medical Cannabis Program Rules that define cannabis and cannabis derived products:
TITLE 7 CHAPTER 34 PART 2
J. “Cannabis” means all parts of the plant, cannabis sativa, and cannabis indica, whether growing or not and the resin extracted from any part of the plant.
K. “Cannabis-derived product” means a product, other than cannabis itself, which contains or is derived from cannabis, not including hemp.
TITLE 7 CHAPTER 34 PART 3
J. “Cannabis” means all parts of the plant, cannabis sativa, and cannabis indica, whether growing or not and the resin extracted from any part of the plant.
K. “Cannabis-derived product” means a product, other than cannabis itself, which contains or is derived from cannabis, not including hemp.
TITLE 7 CHAPTER 34 PART 4
J. “Cannabis” means all parts of the plant, cannabis sativa, and cannabis indica, whether growing or not and the resin extracted from any part of the plant.
K. “Cannabis-derived product” means a product, other than cannabis itself, which contains or is derived from cannabis, not including hemp.
It appears they had exempted hemp from cannabis derived products in the rules 3 times, but have now arbitrarily decided to rescind this allowance without reopening the rules, which is required by law.
So, here we are in a somewhat fuzzy territory with CBD. Technically speaking, the hemp from which it’s made is cannabis sativa. But, by the federal government’s own definition, if it has less than .3% tetrahydracannabinol (THC), cannabis sativa is considered industrial hemp, not marijuana, and it is legal in states that allow it. It’s not a controlled substance, like the heavier THC loaded marijuana. And, by definition in the NM DOH’s own rules and regulations that exempt hemp from their own definition of “cannabis derived products”, CBD derived from hemp should be legal to be sold by anyone in New Mexico, including Licensed Non Profit Producers.
I really wish I had the money to get a lawyer to address this in the NM Courts. The Department of Health should be forced to explain themselves and should also be forced to re-open the rule process if they feel a need to correct their definitions.
*(the L stands for Carl Linnaeus – a Swedish Botanist who was responsible for our modern classification of plants. When a botanical name for a plant has an “L. this is a sign that the plant hasn’t been reclassified since Linnaeus first classified it back in the 16th century.)