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In 2018, Republicans accidentally legalized cannabis. Now 22 AGs want them to undo it

by Saul Elbein - 03/30/24 6:00 AM ET

A coalition of 22 state attorneys general is calling on Congress to address “the glaring vagueness” that has led to legal cannabis products being sold over the counter across the country — including sometimes from vending machines or online.

A letter dated March 20 addresses the consequences of Republican lawmakers’ choice to legalize hemp production in the 2018 omnibus Farm Bill — a decision that perhaps inadvertently led to a multibillion-dollar market in intoxicating cannabis products that are arguably federally legal.

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 — contrary to what the law currently states.

In other words, they want Congress to say that, by definition, hemp can’t get you high.

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 — a wild west of exotic cannabinoids sold without any of the strict controls of the formal legal market.

“Because 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’ intentions to legalize cannabis use,” the attorneys general wrote.

The bipartisan coalition brings together representatives of a diverse group of states — 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).

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It also includes some states where ballot initiatives for legal cannabis were voted down (North Dakota, South Dakota and Arkansas).

The impacts of the intoxicating hemp product boom — which, for example, allows highly-concentrated isolates of the active ingredient in cannabis to be sold by mail — are “dangerously undermining regulations and consumer protections in states where adult-use legal cannabis programs are already in place,” they added.

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.

In fact, they are the same plant: cannabis sativa, a hardy Eurasian species historically prized for its use in fiber and clothmaking — it shares a root with the word “canvas” — as well as its use as a medicinal or intoxicating substance.

That botanical overlap is reflected in the names for the plant itself: Some linguists argue the words “hemp” and “cannabis” are themselves long-diverged versions 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 and smoked it from vessels akin to a modern bong.

The Greek historian Herodotus wrote that the Scythians “take some of this hemp-seed, and … throw it upon the red hot stones,” releasing a vapor that made them “delighted, shout for joy.”

The chemical that caused those joyous shouts — which has also been found in 2,500-year-old vessels from China — is the chemical tetrahydrocannabinol (THC) — sometimes called “the high causer.”

In 2018, when an all-Republican Congress legalized the production of “hemp” in the Farm Bill — which President Trump signed — it effectively split the plant into two categories.

First were those plants that didn’t have significant amounts of THC — which they assessed as 0.3 percent by weight or more — and those that did.

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.

In those markets, cannabis sold for epilepsy, the relief of cancer symptoms or simple recreational use could be 30 percent THC by weight — a hundred times more potent than the very low limit established by Congress in the 2018 Farm Bill.

But Congress had left a wide space — what the attorneys general in their letter described as a loophole.

That was a space that American industry piled in to fill.

First, cannabis entrepreneurs recognized that even non-intoxicating hemp contains cannabidiol (CBD), a chemical that many users say helps with seizures, pain relief and anxiety — and that vendors quickly began adding to candies and beverages.

In 2019, the Food and Drug Administration announced its plans to study whether CBD was a safe food additive — in which case they would have to create a rule that lifted restrictions around adding drugs to food.

Under current law, it’s illegal under the Federal Food, Drug, and Cosmetic Act (FDCA) to “introduce into interstate commerce a food (including any animal food or feed) to which has been added a substance that is an active ingredient in an approved drug product,” then-Deputy Commissioner Amy Abernathy told Congress in 2019.

“I think everyone on this Committee can understand why, in general, adding drugs like blood pressure medicines or chemotherapeutics to foods, or to products marketed as dietary supplements, may not be in the best interests of American consumers and patients,” Abernathy added.

By January of 2023, the agency had come to its conclusion: it couldn’t make a rule for CBD, because it “is not apparent how CBD products could meet safety standards for dietary supplements or food additives.”

But American industry was faster than American regulation, and by then, a multibillion dollar cannabis industry already existed — focused not on mellow, non-intoxicating CBD but on intoxicating THC.

Soon after the passage of the 2018 farm bill, cannabis entrepreneurs recognized that while Congress had focused on the most common form THC — called Delta-9 THC, based on where a key carbon group attaches to the molecule — there were many other forms of THC where that carbon group attached at a different junction.

Those versions — like Delta-8, or Delta-10 or Delta-11 — were still arguably legal, and an industry of edible products and beverages based on those products began across the country.

Other entrepreneurs pushed it further. In a subsequent innovation, cannabis startup founders realized that while 0.3 percent delta-9 THC by weight wasn’t nearly enough to intoxicate users who smoked it — that kind of potency was more than enough to intoxicate if put into an edible.

Today, a standard commercial edible may carry a dosage of 20 milligrams of delta-9 THC — 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.

Those products, the attorneys general argued, pose a significant risk — 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 of children brought in for acute THC intoxication, though the vast majority of these cases did not cause long term harm.)

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.

“As 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,” they write. “These copycat hemp products place children at exceptional risk.”

Finally, around 2023 — even as the FDA sent warning letters to companies selling products infused with Delta-8 — the legal cannabis frontier pushed even further. Enterprising vendors realized that Congress had banned cannabis “flower” containing more than 0.3 percent of Delta-9 THC — but that even intoxicating cannabis doesn’t contain Delta-9 THC.

Instead, it contains delta-9 THCa — or tetrahydrocannabinolic acid, a chemical that is non-intoxicating unless exposed to heat, at which point it is converted to intoxicating THC. (That’s why simply eating marijuana doesn’t get the consumer high.)

Therefore, based on a strict reading of the 2018 Farm Bill, Congress hadn’t just legalized the growth of hemp fibers — it had legalized smokable, intoxicating cannabis, which was legal up until the point that the purchaser lit it on fire.

As one online vendor notes, “THCa 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.”

A study by the National Institute of Justice concluded that 92 percent of the 53 “hemp” samples they tested should have been — by virtue of their levels of THC-related compounds — classed as marijuana.

That doesn’t mean that these products are mislabeled or redirected, however: Because it’s 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.

While affirming that Congress should want to create a legal market for “non-intoxicating hemp,” the attorneys general wrote that “the promise of the 2018 Farm Bill to create this agricultural commodity market, however, has failed.”

“Instead, 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.”

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.

The proliferation of unregulated hemp-based candies, concentrates and sodas are a problem the legal hemp industry itself acknowledges.

The attorneys general raise serious, valid concerns, as Jonathan Miller, senior counsel of the Roundtable, told the Dallas Observer.

“But their solution’s the wrong one,” Miller said. “We 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.”

The trade group is urging members to lobby Congress to “protect the current definition of hemp” and push for regulation of labeling that cannabis to protect children.

“The appropriate answer is not re-definitions or bans. We need regulation,” the group wrote in a response to the attorneys general.

“We have been, and will continue to, advocate for measures prioritizing safety and responsibility without stifling industry growth. Congress must swiftly reject any new prohibition, uphold the current definition of hemp, and ensure that regulatory decisions are rooted in evidence and fairness.”

But the FDA says it never promised to make rules for hemp as a whole — only to decide whether CBD could be put into foods and beverages in a way that met FDA requirements.

As early as 2018, then-Commissioner Scott Gottlieb agency had said that it was unlawful under the FDCA to sell food and beverages containing CBD or THC across state lines — or put it into supplements — “regardless of whether the substances are hemp-derived.”

The FDA argues that the idea that these substances are federally legal rests on a fundamental misunderstanding around the difference between drug law and food and beverage.

The agency’s position is that while the 2018 Farm Bill removed hemp from the Controlled Substances Act — meaning it was no longer a matter for the DEA — Congress still left it up to the agency to regulate cannabis-containing products.

“The Farm Bill removed hemp from the Controlled Substances Act.”

“Congress explicitly preserved the agency’s current authority to regulate products containing cannabis or cannabis-derived compounds under the Federal Food, Drug, and Cosmetic Act”

“They’re subject to the same authorities and requirements as FDA-regulated products containing any other substance,” an agency spokesperson told The Hill.

“To be federally legal, foods and dietary supplements must be safe.”

Updated at 6:35 p.m. April 5

Tags cannabis hemp