High-THC hemp sparks new state regulations

The scramble is on in state legislatures from Hawaii to Connecticut to address an unintended consequence of the 2018 legalization of hemp production in the U.S.: the arrival of unregulated, high-potency psychoactive products on store shelves that are derived from hemp.

The products, which include gummies, potato chips, THC-infused drinks and more — are in convenience stores, smoke shops and elsewhere. Intoxicating vape cartridges, dabs and concentrates are also being sold online.

In some cases, kids are getting their hands on these products, which has led to hospitalizations and even suspected deaths.

“The hemp market is a huge, gaping opportunity for youth to get very high-concentration impairing products, and there’s no federal regulation,” said Gillian Schauer, executive director of the Cannabis Regulators Association.

It was not supposed to be this way.

The 2018 federal Farm Bill, which lifted a prohibition on hemp production, limited the amount of psychoactive delta-9 that agricultural hemp could contain to 0.3% on a dry weight basis. The idea was to make sure that hemp was farmed for feed, fiber and grain, not as another way to get high.

But soon entrepreneurs were extracting non-intoxicating CBD from hemp plants and then — through a lab-based process that involves acids, heat and solvents — creating new intoxicating cannabinoids such as delta-8 and delta-10.

From there, these new lab-derived cannabinoids were infused into products that started hitting store shelves. Because these edibles were hemp-based, they existed outside of regulated recreational cannabis markets.

Over the past two years, states including Colorado, Nevada, Michigan, Minnesota, Oregon and Virginia have passed laws aimed at addressing the development, according to tracking by the Cannabis Regulators Association.

The approaches have included giving state agencies broad regulatory authority over these new products and creating task forces to study the issue.

Minnesota was an outlier: It legalized consumable hemp-derived products and allowed them to be sold in up to 50 milligram packages without purchase limits or licensing requirements. But it is now considering regulating hemp-based edibles as part of a broader, ongoing effort to legalize recreational marijuana.

This year, several more states are grappling with how to regulate this emerging market.

In Washington State, the Liquor and Cannabis Board put forth agency request legislation that would require hemp consumables with more than 1 milligram of THC per unit or 3 milligrams per package be sold through the state’s existing, regulated cannabis market.

“Our state is going to take this approach to say, ‘If you’re creating these products and they’re over this amount, you can only have that in the [regulated] market,’” said Justin Nordhorn, director of policy and external affairs at Washington’s LCB. “You can’t sell that anywhere outside of this market, even online or anything. That’s not allowable.”

Critics of the Washington State bill have argued the THC caps are too low and would ensnare so-called full spectrum hemp products that are not designed to get someone high. Conversely, some public health advocates have expressed concern that any amount of THC in an unregulated product is too much and potentially puts youth at risk.

Legislation to regulate or even outlaw hemp-derived THC products has also been introduced this year in a long list of states, including Connecticut, Georgia, Hawaii, Indiana, Kansas, Kentucky, Montana, North Dakota, South Dakota, Tennessee and West Virginia.

Following recommendations from a 2022 task force, Virginia’s legislature cleared a bill that is awaiting Gov. Glenn Youngkin’s (R) signature.

In Connecticut, where adult-use recreational marijuana sales began in January, state Rep. Mike D’Agostino (D), House chair of the General Law Committee, expressed alarm over the intoxicating hemp-derived products that are showing up on store shelves in his state.

“It’s just an end-run around our regulated marketplace — we don’t want that,” D’Agostino said.

D’Agostino said his committee is wrestling with how best to regulate these new products. One option is to allow products with lower THC levels to be sold in regular stores. Another is to require that any product containing THC be sold only in state-regulated cannabis stores.

“That strikes a lot of us as the easiest solution,” D’Agostino said.

Connecticut Attorney General William Tong (D) is not waiting for legislation. This month he sent warning letters to electronic vaping retailers in the state warning that the sale of products containing delta-8 THC outside of the regulated cannabis market is illegal.

Also this month, the U.S. Drug Enforcement Administration issued a letter declaring that synthetic versions of another cannabinoid, THC-O-acetate, are Schedule 1 substances that do not fall under the definition of hemp.

The Food and Drug Administration has also sent letters and issued warnings.

The U.S. Hemp Roundtable, a trade group representing leading hemp companies, said it shares the concern that states have about the proliferation of psychoactive hemp-based consumables.

The group said it opposes banning the products, as some states have proposed. It agrees they should be regulated, but exactly how is a point of contention. It is concerned that some state-level efforts could ensnare products with lower THC levels that are sold as therapeutics.

“It’s not fine to also require non-intoxicating products to be sold that way; they should be available at retail,” said Jonathan Miller, the Roundtable’s general counsel.

For example, Miller views Washington State’s proposed milligram limits as too draconian. He suggested that some in the cannabis industry may be pushing for artificially low limits because they view the hemp-based products as competition.

Miller also said different rules in different states creates confusion. Ultimately, he said, the Roundtable wants Congress to pass a law to establish national standards.