In 2018, a loophole in federal law created a market for potentially problematic or even dangerous hemp products that can get you high. Kids can easily buy them, and often do. The market exists in a netherworld governed neither by laws prohibiting pot nor by laws governing how legal weed can be bought and sold.
Six years later, it looks like lawmakers at the state level, including in California, are finally getting around to addressing this problem.
When Republican Senate Majority Leader and staunch pot prohibitionist Mitch McConnell was promoting the ultimately successful measure to legalize hemp in 2018, it might not have occurred to him that, soon, teenagers (and adults) across the land would be ordering cannabis products online, made from hemp, that could get them high, and that this would be widely interpreted as perfectly legal. More likely, he was thinking almost entirely about the support and largesse of the sizable hemp industry in his home state of Kentucky.
But it was known well before the passage of the 2018 Farm Bill to which the hemp measure was attached that THC could be extracted from hemp to produce intoxicating products, so maybe McConnell did know, and just didn’t care, which would be less than surprising.
To be fair, though, most people’s knowledge of hemp didn’t extend much beyond the fact that hemp is related to the marijuana plant (both are cannabis) and the fact that it has a bunch of practical and industrial uses. Some people knew it contained a bit of THC, the main psychoactive component of the pot plant, but that in its natural state, hemp could not get a person high. Almost nobody outside the nerdy confines of pot research knew that delta-8 THC and other psychoactive elements found in all cannabis plants could be extracted from hemp and concentrated in products that have effects similar to those of what we usually think of as pot.
The ignorance of these facts on the part of regulators and lawmakers led to the gaping legal loophole that allowed the market for intoxicating hemp to flourish. The Farm Bill specified a maximum THC level of the delta-9 type allowed in hemp, but no other THC type (like delta-8) is even mentioned in the law. So technically, any hemp-derived product with enough psychoactive ingredients to get you high was widely considered legal unless it contained enough delta-9 to put it over the Farm Bill’s limit.
Tons of peddlers emerged, many of them downright skeevy. The intoxicating hemp products are now available online to anyone, even in states where weed is still illegal. Some of those products are potentially harmful (especially vapes) and are produced without any oversight or inspection at all. This sub-industry continued to grow even as lawmakers and others were making noises about banning the products.
Those noises are now turning into action. Gov. Gavin Newsom recently proposed a set of “emergency regulations” that some observers say would be among the strictest in the country. The proposal would require that hemp products contain no amount of detectable THC. Oddly, given that provision, the regulation would require that sales of all hemp products be limited to people 21 and over.
Noting that the hemp industry has fought hard against restrictions, Newsom said at a press conference this month that “in the industry, there’s full responsibility for not policing itself for the proliferation of these intoxicating products that are hurting our children.” He noted that some grocery stores and other shops carry them, and often will sell them to kids. His proposal comes after the Legislature failed to pass a proposed bill this summer. He called it an “interim” solution to give time to lawmakers at the state and federal levels to finally take action.
The problem won’t be totally solved, though, until the Farm Bill loophole is closed. Unfortunately, as is common in recent years, the new Farm Bill keeps getting delayed while various special interests wrangle for goodies. Meanwhile, the Senate under Mitch McConnell is still refusing to take up a measure that would help some: legalizing (and thus regulating) pot.
