The Agricultural Improvement Act of 2018 (the “2018 Farm Bill”) established that hemp is to be treated similarly to other legal agricultural commodities and traded in standard interstate commerce as a raw material. However, the 2018 Farm Bill governs only state production programs and specifically permits states to enact more stringent regulations than those contained in the Bill. As a result, legal hemp has facilitated the emergence of a wide array of consumer products and uses. Specifically, smokable hemp has made a significant presence in the cannabis and hemp markets and continues to grow despite the increasing legality of other forms of cannabis that often include higher concentrations of tetrahydrocannabinol (“THC”). Below, we discuss the smokable hemp industry and the legal challenges it faces as it comes to fruition.
What Is Smokable Hemp?
The 2018 Farm Bill defines hemp as
“the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” 7 U.S.C. § 1639o.
The 2018 Farm Bill’s expansive legal definition of hemp has led to hemp being more commonly produced and much easier to obtain, leading to a variety of hemp strains that contain additional cannabinoids, flavonoids, and aromatic terpenes, which in turn provides a more robust experience when smoking hemp. Smoking hemp typically occurs via smoking, vaping, dabbing, and other methods. Additionally, smokable hemp products are commonly sold as “pre-rolls” or joints prepared by a legal hemp vendor. Users frequently claim that smoking hemp provides a relaxing experience without the adverse “high” effects of THC. Moreover, smoking hemp delivers cannabinoids directly into the bloodstream instead of through the digestive system, like edibles and other consumable hemp products.
“Theoretical” THC and Smokable Hemp
One of the challenges facing the smokable hemp market is the concept of “theoretical THC,” and how THC content is measured in raw cannabis flower. A raw cannabis plant typically contains a small amount of THC and rather large amounts of tetrahydrocannabinolic acid (“THCA”). When the cannabis plant is heated or burned while smoking or as part of the extraction process, THCA is converted into THC, the compound whose concentration distinguishes legal hemp from illegal marijuana. Accordingly, “theoretical THC” is defined as the amount of potential THC based on the amount of THCA in the raw cannabis flower.
As efforts to provide a uniform stance on the legality of the different aspects of the cannabis industry continue, the United States Department of Agriculture (“USDA”) issued an interim rule establishing that hemp must have a THC concentration level of 0.3% or less, including theoretical THC. Thus, this rule promulgated by USDA creates difficulties for smokable hemp products to remain compliant. Working out these types of legal inconsistencies is imperative to the success of the smokable hemp industry.
Attempts To Ban Smokable Hemp
Several states, including Idaho, Indiana, Iowa, Kentucky, Louisiana, Massachusetts, and Texas have enacted certain bans on smokable hemp products. These bans are often fueled by law enforcement-based reasonings.
Many of the states that have enacted smokable hemp bans have raised the argument that for officers in the field, it can be difficult to decipher the difference between lawful hemp and unlawful marijuana. For years, law enforcement has used the smell of marijuana to justify arrests and warrantless searches, but the introduction of legal, smokable hemp completely nullifies this line of reasoning. Recent cases have also indicated that officers may not rely on smell alone in establishing probable cause for a search. Additionally, smokable hemp makes potential prosecution significantly more difficult because the simple presence of THC (indicated with a color-changing dye) alone at a roadside stop provides a basis for citation or arrest; however, the color-changing dye does not indicate the amount of THC. Going forward, states will likely have to resort to much more expensive potency tests for purposes of distinguishing legal hemp from illegal marijuana in order to pursue marijuana possession convictions.
The Future of Smokable Hemp
While the strict THC limits imposed by the USDA’s interim rule and the smokable hemp bans enacted in several states have certainly impacted the market, the smokable hemp market remains extremely promising. Despite the efforts to stifle the industry, the demand for smokable hemp is growing, and farmers and processors continue to cultivate compliant strains and even simpler methods of production. In 2019, hemp flower and pre-roll sales alone were estimated to account for $70.6 million of the nationwide hemp market share.
At Ritter Spencer PLLC, we are at the forefront of the fight for fair and unified hemp regulations. On August 5, 2020, we filed a lawsuit against the Texas Department of State Health Services (“DSHS”) on behalf of our client, Crown Distributing LLC. On August 19, 2020, we successfully obtained a temporary restraining order (“TRO”) enjoining DSHS from enforcement of the bans prohibiting the manufacturing, processing, distribution, and sale of smokable hemp products in Texas, which was signed by Judge Lora Livingston on August 20, 2020, and will be in place until September 2, 2020.
Hemp lawyer Chelsie Spencer is dedicated to offering legal services, counsel, and support to a broad range of legal hemp and cannabis businesses. Chelsie practices medical marijuana, hemp, and CBD law, as well as commercial and intellectual property law, including copyrights and trademarks. Contact Ritter Spencer or give us a call at 214.295.5070 for more information.
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