Wednesday, December 1, 2021
The hemp-derived cannabinoid market continues to grow and evolve despite lingering questions over federal legality and numerous state laws that try to keep pace. Much has been written about new “legal” hemp products that contain intoxicating delta-8 THC, delta-10 THC and THC-O Acetate. This article, however, seeks to highlight a brazen new use for familiar old delta-9 THC. Edible products with intoxicating levels of delta-9 THC now are being sold as legal and less-expensive alternatives to regulated cannabis products. Although purveyors of hemp-derived delta-9 THC seek to exploit a perceived loophole in the 2018 Farm Bill’s definition of hemp extracts, these unregulated and intoxicating products are fraught with risk. The cannabis and hemp industries and their insurers should take notice and respond now.
Admittedly, there is some ambiguity in the Farm Bill’s definition of hemp extract because liquid extracts cannot be weighed on a dry weight basis (the Farm Bill’s definition of legal hemp extract includes “the plant Cannabis sativa L. and any part of that plant, including … extracts …, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3% on a dry weight basis”). Congress nevertheless clearly intended to make illegal any intoxicating products derived from legal hemp, based on a clear reading of the Farm Bill and its legislative background documents. We can therefore confidently say that intoxicating delta-9 THC products from hemp violate the spirit if not the actual letter of the law.
The Problem Illustrated
To illustrate the problem of hemp products that contain less than 0.3 percent delta-9 THC concentration but are nevertheless intoxicating, consider these examples. A typical energy bar of 60 grams would be allowed to have up to 180 mg delta-9 THC if limited to 0.3 percent THC concentration by weight. Regulated cannabis edible products, by comparison, typically may be sold only in a serving size of no more than 10 mg, with a limit of up to 100 mg per package. A four gram hemp gummy product, however, could have 10 mg of delta-9 THC and still fall below the allowable concentration threshold.
As States Race to Catch Up, California Announces a New Approach
As states grapple with how to respond effectively to the problem of unregulated intoxicating hemp cannabinoids being sold openly and online, some may choose to replicate California’s new approach announced within Assembly Bill 45 (AB45), which was signed into law by Governor Gavin Newsom in early October 2021. AB45 allows for hemp-derived cannabinoids, extracts and derivatives in food and dietary supplements with various restrictions. To curtail the growth of new intoxicating products such as delta-8 THC, the bill creates a new definition for “THC or comparable cannabinoid” that includes “[any] tetrahydrocannabinol, including, but not limited to, Delta-8-tetrahydrocannabinol, Delta-9-tetrahydrocannabinol and Delta-10-tetrahydrocannabinol, however derived.” The California Department of Public Health (CDPH) is granted discretion to include or exclude within this definition “any other cannabinoid, except cannabidiol, that the department determines … to cause intoxication.” This provides CDPH with the flexibility to respond quickly to new intoxicating hemp cannabinoid products sold within the state.