Our democracy is driven by both laws and fundamental freedoms. Americans expect governmental oversight that balances freedom of choice with protection of public health and safety. Sometimes these two imperatives that are emblematic of a free society do not align perfectly.
It’s time for Congress to strike that balance by closing the intoxicating cannabinoid loophole in the 2023 Farm Bill.
A marketplace of unregulated intoxicating hemp-derived cannabinoid products has fast emerged across the country, following the passage of the Agricultural Improvement Act of 2018, or the Farm Bill.
Congress intended to legalize hemp with a de minimis amount of Delta-9 THC: 0.3% on a dry weight basis. However, poor drafting opened the floodgates for intoxicating hemp-derived cannabinoid products to flourish.
To illustrate the loophole, an average chocolate bar weighs 50 grams. Cannabinoid concentration is expressed in milligrams—when applied to the weight of a chocolate bar, the allowance of hemp-derived Delta-9 THC is anything but de minimis at 150 milligrams.
This is especially true when compared to regulations for marijuana that, on average, restrict adult-use products to 10 milligrams per serving, not to exceed 100 milligrams per container.
Yet, 2018 Farm Bill language provides limited guardrails for an ever-escalating weight-based allowance of Delta-9, while all other cannabinoids, including intoxicating Delta-8, are not limited by the hemp definition.
As a result, anyone, including vulnerable children and unsuspecting adults, can purchase these intoxicating hemp-derived cannabinoid products without quality assurance, age verification, or warning labels—all required in retailing intoxicants like marijuana, tobacco, or alcohol.
Some argue these intoxicating hemp-derived cannabinoid products are legal, and others say they are most certainly not. Interpretation aside, the ubiquitous sale of intoxicating hemp-derived cannabinoid products without guardrails isn’t just plain wrong and unsafe—it’s actually anti-American.
Significant investments have been made into the country’s 38 regulated state cannabis programs. The sale of rogue intoxicating hemp-derived cannabinoid products is antithetical to the public policy rationale of state-legal marijuana systems.
The state-legal systems apply rigorous public safety standards and taxation regimes for Delta-8’s sister product—Delta-9 THC. These molecules—derived from the same Cannabis sativa L. plant—should not be treated differently or regulated by different bodies when their effects on the human body are indistinguishable.
Regulating them differently isn’t just illogical. It’s unfair to the cannabis businesses—large and small—that have invested heavily in state compliance programs for marijuana-derived Delta 9 products.
The same regulators should be tasked with regulating all intoxicating cannabinoid products, regardless of whether they are derived from marijuana or hemp or whether they contain Delta-9, Delta-8, or any other intoxicating cannabinoids.
Regulations should include lab testing, governmental warnings, track and trace, packaging and labeling restrictions, and age verification to ensure our public health and safety.
Safety Guardrails Needed
This is what responsible government does—it allows capitalism to flourish, while simultaneously protecting public health. That’s why we’re a nation of laws. It’s why we have traffic lights and red stop signs, and food testing and product labeling. These guardrails don’t impede capitalism. They enable capitalism to flourish and consumers to have freedom of safe and responsible choices.
Unregulated intoxicating cannabinoid products can be deadly. In New Hampshire, a bus driver unwittingly purchased and consumed intoxicating gummies from the open marketplace, thinking that they were candy. He then drove a bus full of elderly passengers off the side of Interstate 95. He’s now facing criminal charges.
And a four-year-old boy ingested gummies purchased by his mother from the open marketplace. That child died due to ingestion of high levels of intoxicants. His mother, who thought that she had purchased CBD, is also facing potential prison time.
Recognizing this public health risk, the Food and Drug Administration released a statement in January calling on Congress to address CBD, Delta 8, and other hemp-derived cannabinoids, given their potential impact on Americans’ health and safety, and noting the FDA’s own limitations.
States’ patchwork approach regarding intoxicating hemp-derived cannabinoids is playing out in real time. In Minnesota, intoxicating hemp products were haphazardly legalized.
The heavily criticized legislation failed to include a final form testing regime and provided for an allowance of intoxicating cannabinoids in 5 milligrams per serving and 50 milligrams per package in food and beverages—50% of the maximum allowance under the state’s medical marijuana program.
Tennessee and Texas allow for hemp-derived Delta-9 THC products sold without testing requirements to be incorporated directly into food and alcoholic beverages.
In Kentucky, Governor Andy Beshear saw the problem and issued an executive order directing the Cabinet for Health and Family Services to apply packaging and labeling rules applicable to hemp products to those containing intoxicating Delta-8 THC.
Time for Change
Intended or not, intoxicating hemp-derived cannabis products are freely available on store shelves across the country and countless e-commerce websites. Safety can be restored by embracing equitable treatment of cannabinoids regardless of their source.
Remembering valuable lessons from the regulated cannabis industry—track and trace, packaging and labeling, quality assurance, and quality control testing— and applying them would provide the necessary balance between free enterprise and public health and safety.
The country stands at a crossroads. Allowing production and sale of unregulated intoxicating hemp-derived cannabinoid products to be sold in gas stations, convenience stores, and online without testing, age verification, or governmental warnings amounts to unscrupulous and dangerous profiteering.
The answer is right in front of us—modernize the 2023 Farm Bill to regulate all intoxicating cannabinoids—regardless of plant source, and balance American capitalism with protections for public health.
This story has been corrected to reflect that an average chocolate bar weighs 50 grams in comparison to cannabinoid weight.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Pamela Epstein is chief legal and regulatory officer for Terpene Belt, a wholly owned subsidiary of Eden Enterprises.
Andrew Kline is co-chair of Perkins Coie’s cannabis industry group and a former federal prosecutor.