Last week, I wrote a post entitled “Loper Comes For the DEA. Will it Matter Though?” In that post, I discussed a brand new federal Fourth Circuit Court of Appeals case that concluded that hemp derivatives like THC-O are not controlled substances. The hemp community has largely celebrated this as a win, even though as I wrote in that post and back in July, none of this really matters if Congress bans intoxicating hemp products – which looks like it will happen.
On the heels of the Fourth Circuit case, a few things happened that don’t make life easier for people who want intoxicating hemp products.
Probably the most significant of the bad news, the California Department of Public Health (CDPH) issued emergency regulations to ban a series of intoxicating hemp products. A lot has been written about these regulations, but it’s worth pointing out that California’s hemp law (AB-45) was already not very favorable to smokable hemp products.
For example, AB-45 already prohibits smokable hemp products. And more notably, it defines THC to include THCA and “any tetrahydrocannabinol, including, but not limited to, Delta-8-tetrahydrocannabinol, Delta-9-tetrahydrocannabinol, and Delta-10-tetrahydrocannabinol, however derived”. In other words, all of the various things that are defined as THC – and there are many – must already not exceed 0.3% in the aggregate. This means that a host of products were already de facto banned in the state.
While, to be sure, the new emergency regulations take things farther, I think it would be inaccurate to describe this as a “sea change” in how hemp products are regulated in the state. What remains to be seen is whether CDPH or other agencies ramp up enforcement in any meaningful way. It’s California, so my guess is no.
California’s not the only state taking aim at intoxicating hemp products. Just the other day, Missouri’s Attorney General created a new task force to crack down on intoxicating hemp products. New Jersey’s Governor also signed a bill cracking down on intoxicating hemp products.
All this just adds to the long list of states and municipalities that had been going after unregulated intoxicating hemp products prior to the Fourth Circuit’s decision – often for violations of state or local law which are unlikely to be impacted by the federal case. And of course, if Congress gets around to banning intoxicating hemp products, that will likely be the last straw for many of these products.
