A coalition of 22 state attorneys general is calling on Congress to address \u201cthe glaring vagueness\u201d that has led to legal cannabis products being sold over the counter across the country \u2014 including sometimes from vending machines or online.<\/p>\n\n\n\n
A letter dated March 20<\/u><\/a> addresses the consequences of Republican lawmakers\u2019 choice to legalize hemp production in the 2018 omnibus Farm Bill \u2014 a decision that perhaps inadvertently led to a multibillion-dollar market<\/u><\/a> in intoxicating cannabis products that are arguably federally legal.<\/p>\n\n\n\n Now, the attorneys general want Congress to shutter the market it helped create. In the new Farm Bill, they want the legislature to enshrine in statute the idea that intoxicating cannabis is not federally legal \u2014 contrary to what the law currently states.<\/p>\n\n\n\n In other words, they want Congress to say that, by definition, hemp can\u2019t get you high.<\/p>\n\n\n\n The rise of the legal (and intoxicating) hemp market runs counter to the development over the past decade of the highly-regulated recreational and medicinal cannabis industries that voters have approved across the country<\/u><\/a> \u2014 a wild west of exotic cannabinoids sold without any of the strict controls of the formal legal market.<\/p>\n\n\n\n \u201cBecause of the ambiguity created by the 2018 Farm Bill, a massive gray market worth an estimated $28 billion has exploded, forcing cannabis-equivalent products into our economies regardless of states\u2019 intentions to legalize cannabis use,\u201d the attorneys general wrote.<\/p>\n\n\n\n The bipartisan coalition brings together representatives of a diverse group of states \u2014 not just red and blue, but those where recreational marijuana is legal (California, Hawaii), those where it is only legal for medical use (Pennsylvania) and those where it is fully illegal (Georgia).<\/p>\n\n\n\n It also includes some states where ballot initiatives for legal cannabis were voted down (North Dakota, South Dakota and Arkansas).<\/p>\n\n\n\n The impacts of the intoxicating hemp product boom \u2014 which, for example, allows highly-concentrated isolates of the active ingredient in cannabis to be sold by mail \u2014 are \u201cdangerously undermining regulations and consumer protections in states where adult-use legal cannabis programs are already in place,\u201d they added.<\/p>\n\n\n\n That massive industry, and the current controversy, rest on a bit of legal hairsplitting that in many ways contradicts a biological reality. The law relies on the idea that there is a clear distinction between marijuana, which is intoxicating and highly regulated, and hemp, which is none of the above.<\/p>\n\n\n\n In fact, they are the same plant: cannabis sativa, a hardy Eurasian species historically prized for its use in fiber and clothmaking \u2014 it shares a root with the word \u201ccanvas\u201d \u2014 as well as its use as a medicinal or intoxicating substance. <\/p>\n\n\n\n That botanical overlap is reflected in the names for the plant itself: Some linguists argue the words \u201chemp\u201d and \u201ccannabis\u201d are themselves long-diverged versions<\/u><\/a> of the same word, which comes from the language of the ancient Scythian nomads of the Eurasian steppe, who both wove the plant into cloth<\/u><\/a> and smoked it from vessels<\/u><\/a> akin to a modern bong.<\/p>\n\n\n\n The Greek historian Herodotus wrote that the Scythians \u201ctake some of this hemp-seed, and \u2026 throw it upon the red hot stones,\u201d releasing a vapor that made them \u201cdelighted, shout for joy.\u201d<\/p>\n\n\n\n The chemical that caused those joyous shouts \u2014 which has also been found<\/u><\/a> in 2,500-year-old vessels from China \u2014 is the chemical tetrahydrocannabinol (THC) \u2014 sometimes called \u201cthe high causer.\u201d<\/u><\/a><\/p>\n\n\n\n In 2018, when an all-Republican Congress legalized the production of \u201chemp\u201d in the Farm Bill \u2014 which President Trump signed \u2014 it effectively split the plant into two categories.<\/p>\n\n\n\n First were those plants that didn\u2019t have significant amounts of THC \u2014 which they assessed as 0.3 percent by weight or more \u2014 and those that did. <\/p>\n\n\n\n The former (hemp) became legal, while the latter (marijuana) remained in a strange legal gray area: Federally illegal under the same drug classification schedule as heroin and available only through tightly controlled and heavily taxed markets in a growing number of states.<\/p>\n\n\n\n In those markets, cannabis sold for epilepsy, the relief of cancer symptoms or simple recreational use could be 30 percent THC by weight \u2014 a hundred times more potent than the very low limit established by Congress in the 2018 Farm Bill.<\/p>\n\n\n\n But Congress had left a wide space \u2014 what the attorneys general in their letter described as a loophole. <\/p>\n\n\n\n That was a space that American industry piled in to fill.<\/p>\n\n\n\n First, cannabis entrepreneurs recognized that while Congress had focused on the most common form THC \u2014 called delta-9 THC, based on where a key carbon group attaches to the molecule \u2014 there were many other forms of THC where that carbon group attached at a different junction. <\/p>\n\n\n\n Those versions \u2014 like delta-8, or delta-10 or delta-11 \u2014 were still arguably legal, and an industry of edible products and beverages based on those products began across the country.<\/p>\n\n\n\n Other entrepreneurs pushed it further. In a subsequent innovation, cannabis startup founders realized that while 0.3 percent delta-9 THC by weight wasn\u2019t nearly enough to intoxicate users who smoked it \u2014 that kind of potency was more than enough to intoxicate if put into an edible. <\/p>\n\n\n\n Today, a standard commercial edible may carry a dosage of 20 milligrams of delta-9 THC \u2014 which is far less than 0.3 percent of the weight of a 10-gram candy, but still more than enough to get a user high.<\/p>\n\n\n\n Those products, the attorneys general argued, pose a significant risk \u2014 in particular to children, who can easily consume unsafe amounts of THC-infused candies. (The National Association of Poison Control Center reported 7,000 cases<\/u><\/a> of children brought in for acute THC intoxication, though the vast majority of these cases did not cause long term harm.)<\/p>\n\n\n\n That problem, they noted, is in large part due to a lack of regulation, which has allowed vendors to sell counterfeit version of popular candies.<\/p>\n\n\n\n \u201cAs hemp-based THC-infused products increase in popularity, particularly edibles, illicit suppliers have begun co-opting legitimate brand names and packaging to sell candy, snacks, and cereal that are intoxicating and confusing to consumers,\u201d they write. \u201cThese copycat hemp products place children at exceptional risk.\u201d<\/p>\n\n\n\n Finally, around 2023, the legal cannabis frontier pushed even further. Enterprising vendors realized that Congress had banned cannabis \u201cflower\u201d containing more than 0.3 percent of delta-9 THC \u2014 but that even intoxicating cannabis doesn\u2019t contain delta-9 dHC.<\/p>\n\n\n\n Instead, it contains delta-9 THCa \u2014 or tetrahydrocannabinolic acid, a chemical that is non-intoxicating unless exposed to heat, at which point it is converted to intoxicating THC. (That\u2019s why simply eating marijuana doesn\u2019t get the consumer high.)<\/p>\n\n\n\n Therefore, based on a strict reading of the 2018 Farm Bill, Congress hadn\u2019t just legalized the growth of hemp fibers \u2014 it had legalized smokable, intoxicating cannabis, which was legal up until the point that the purchaser lit it on fire. <\/p>\n\n\n\n As one online vendor notes, \u201cTHCa is completely legal across the U.S. It contains less than 0.3 percent Delta-9 THC, which according to the DEA, makes it federally legal.\u201d <\/p>\n\n\n\n A study by the National Institute of Justice concluded that 92 percent of the 53 \u201chemp\u201d samples they tested should have been \u2014 by virtue of their levels of THC-related compounds \u2014 classed as marijuana.\u2002<\/u><\/a><\/p>\n\n\n\n That doesn\u2019t mean that these products are mislabeled or redirected, however: Because it\u2019s fundamentally the same plant, growers starting with cannabis varieties created for fiber can selectively breed until they have levels with suitably high amounts of THCa.<\/p>\n\n\n\n While affirming that Congress should want to create a legal market for \u201cnon-intoxicating hemp,\u201d the attorneys general wrote that \u201cthe promise of the 2018 Farm Bill to create this agricultural commodity market, however, has failed.\u201d<\/p>\n\n\n\n \u201cInstead, hemp-derived intoxicants have proliferated across our states, posing a significant threat to public health and safety, and benefiting unregulated, untaxed, and unaccountable market actors.\u201d<\/p>\n\n\n\n The lost taxes in particular are significant: In 2022, the states with legal marijuana took in an estimated $3.77 billion in taxes on recreational and medicinal sales.<\/p>\n\n\n\n The proliferation of unregulated hemp-based candies, concentrates and sodas are a problem the legal hemp industry itself acknowledges. Representatives for the trade group U.S. Hemp Roundtable notes that the Food and Drug Administration promised it would create clear regulations for legal hemp<\/u><\/a> back in 2019 \u2014 something it has not yet done.<\/p>\n\n\n\n The Hill has reached out to the FDA for comment.<\/p>\n\n\n\n The attorneys general raise serious, valid concerns, as Jonathan Miller, senior counsel of the Roundtable, told the Dallas Observer<\/u><\/a>.<\/p>\n\n\n\n \u201cBut their solution\u2019s the wrong one,\u201d Miller said. \u201cWe need regulation. We need the FDA to come in and start regulating hemp products like they promised they would five years ago. The answer is not a prohibition or changing the definition of hemp in a federal law to ban these products.\u201d<\/p>\n\n\n\n