Efforts to put guardrails around the largely unregulated market for intoxicating hemp products have repeatedly sparked lawsuits.
Mississippi is confronting an unlikely new drug scourge: Hemp.
Intoxicating, hemp-derived products — which aren’t subject to testing or packaging requirements — are being sold at gas stations, corner stores and other retail establishments all over the Magnolia State. Kids aren’t even barred from buying mind-altering items like gummies and vapes that contain forms of THC that are similar to the psychoactive ingredient in marijuana.
“Principals were complaining to me that kids are vaping Delta-8, Delta-10 all day — and are high all day — and get it at the gas station,” Mississippi state Rep. Lee Yancey, a Republican, said in an interview.
Where marijuana contains a type of THC known as Delta-9, the hemp-derived products Yancey referred to contain similar compounds, all of which can give users a euphoric high.
State lawmakers and regulators are now scrambling to fill the void created by a lack of federal legal clarity, worried about the risks of a completely unregulated drug industry that’s sprung up in plain sight. In more than 20 states — ranging from Florida to Ohio, California to Mississippi — legislators are proposing laws aimed at putting stricter guardrails around intoxicating hemp products or banning them altogether.
The spread of freewheeling drug gray markets like the one in Mississippi is an unintended consequence of Congress legalizing hemp under the 2018 farm bill, hoping it would be a boon to struggling farmers. But the nascent industry for non-intoxicating products like CBD oil and hemp milk has floundered.
Instead, an increasingly large share of the hemp being legally grown — exact figures are impossible to pin down — is now converted into legally hazy psychoactive products.
The proliferation has led to growing concerns that this largely unregulated industry presents a looming public health crisis, with both children and adults accessing drugs that face little of the rigorous testing requirements and purchasing limits that typically apply to state-legal cannabis markets. More than one in 10 high school seniors reported using Delta-8 THC products in a recent national survey, according to a study published earlier this week in the Journal of the American Medical Association.
And some public health experts are even warning that the wild west hemp market poses a threat to the marijuana legalization experiment that’s spread rapidly across the country over the last decade.
“The longer cannabinoid hemp remains unregulated federally, the more likely it is that we will see a major public health event that could put the entirety of legalization at risk,” said Gillian Schauer, executive director of the Cannabis Regulators Association. “Regulation is urgently needed to ensure a baseline of consumer safety across the industry.”
But state efforts to reign in the market have repeatedly sparked lawsuits from hemp companies arguing that they run afoul of federal law, with courts often halting implementation of tougher rules while the legal disputes play out.
And the proposals to curb the proliferation of intoxicating hemp-derived products are increasingly pitting legal marijuana companies — which must navigate a bewildering state-by-state patchwork of rules and regulations due to federal illegality — against their one-time allies in the hemp industry.
“What you’re seeing here is cannabis interests … lobbying legislatures to decimate the hemp-derived cannabinoid retail industry,” said Jim Higdon, co-founder of Cornbread Hemp, a Kentucky-based company that sells non-psychoactive products like CBD gummies nationwide. “That’s what this is about.”
‘Wild west of intoxicating hemp products’
Mississippi launched its medical marijuana program just over a year ago, after lawmakers overwhelmingly passed legislation championed by Yancey and Republican state Sen. Kevin Blackwell.
The framework they backed combines relatively liberal rules for marijuana businesses — there are no caps on the number of licenses — with fairly strict requirements for patients to enroll in the program.
The upshot in the first year of operations is a market badly out of alignment: There are nearly 400 licensed medical marijuana businesses, including 192 dispensaries, and about 35,000 patients. That’s roughly one dispensary for every 182 patients. In contrast, Florida has more than 1,400 patients for each licensed medical shop and Arkansas has about 2,500 patients for every dispensary.
The bottom line: There are too many businesses and too few patients for Mississippi weed entrepreneurs to make much money. Those challenges have been exacerbated by the proliferation of businesses selling intoxicating hemp-derived products that anyone can purchase without the hassle or cost of enrolling in the medical program.
“You have this wild west of intoxicating hemp products. Nobody really knows where they came from,” said Nate Steel, chief compliance and government affairs officer for Good Day Farm, which has five dispensaries in Mississippi, as well as cannabis operations in Arkansas, Missouri and Louisiana. “It’s essentially a black market in open sight.”
Yancey recently introduced legislation aimed at addressing the issue. It would require all intoxicating cannabis products to be sold through licensed medical marijuana dispensaries and limit sales to people at least 21 years old. The bill defines intoxicating products as any item that contains at least 0.5 milligrams total THC or any package with at least 2.5 milligrams total THC.
That proposal immediately sparked opposition from hemp industry officials, who argue the threshold for defining intoxicating products is far too low and that the legislation would decimate their businesses.
“These numbers are arbitrary and just pulled out of thin air,” said Patrick Shatzer, regulatory affairs senior manager for Your CBD Store, a nationwide chain that has five outlets in Mississippi. “They’re just arbitrarily low.”
The U.S. Hemp Roundtable, a national trade group, immediately issued an alert calling on its allies to lobby Mississippi lawmakers to oppose the proposal. Jonathan Miller, the group’s general counsel, said members are in favor of reasonable regulations to address dangerous products being sold to kids — pointing to Kentucky’s regulations for hemp-derived products as a potential model — but that proposals like Mississippi’s go well beyond what’s necessary to protect public health.
“This is really serving a need out there,” Miller said of intoxicating hemp-derived products. “It’s been a lifeline for hemp farmers.”
Mississippi is far from alone in confronting the issue right now:
- In Florida, lawmakers passed legislation aimed at cracking down on intoxicating hemp-derived products during the final days of this year’s legislative session, despite industry warnings that it would decimate their businesses. The measure limits THC concentration for hemp products to 5 milligrams per serving and 50 milligrams per container.
- Missouri lawmakers are similarly weighing legislation that would treat hemp-derived products essentially the same as marijuana, which is legal for adults to purchase and possess in the state. That would mean they could only be sold in licensed weed shops and only to people at least 21 years old.
- And in Tennessee, proposed testing regulations issued in December by the state agriculture department sparked a massive outcry from hemp industry officials, who argue that the rules would imperil their businesses by effectively banning many of the products they currently sell.
“Every day I feel like there’s a new action in a state legislature that we are addressing,” said Michael Bronstein, president of the American Trade Association of Cannabis and Hemp, which supports tougher regulations for hemp-derived products. “If consumers do not know what is in the products that they are receiving, then we have failed as an industry and in the larger legalization movement.”
In Mississippi, Yancey’s bill cleared a pair of House committees and is poised for a floor vote.
‘All over the map’
Even if the proposals in Mississippi and across the country are ultimately enacted, many of them will undoubtedly spark lawsuits from hemp interests. Courts in numerous states are already wrestling with the legally murky issue — and their rulings have only contributed to the confusion.
In September, a federal judge in Arkansas granted a preliminary injunction blocking implementation of the state’s law effectively banning intoxicating hemp-derived products, concluding parts of the statute were likely unconstitutional. That decision has been appealed to the 8th Circuit Court of Appeals.
Then in October, a federal judge in Virginia rejected a request for a similar preliminary injunction blocking implementation of a new law cracking down on intoxicating hemp-derived products.
“Defendants have demonstrated that delta-8 THC is a credible threat to the Virginia population, and there is a strong public interest in protecting the citizens of the Commonwealth from substances like delta-8, including a vulnerable population, such as children, from hospitalizations and poisonings,” U.S. District Court Judge Leonie M. Brinkema wrote in her ruling.
The plaintiffs have appealed that decision to the 4th Circuit Court of Appeals.
State lawmakers and regulators across the country face an uncertain legal landscape in trying to craft policies to address the public health issue.
“Just like everything else in hemp and marijuana, we’re all over the map,” said Neil Willner, co-chair of the cannabis practice at Royer Cooper Cohen Braunfeld. “That’s created even further unpredictability and ambiguity.”
Rod Kight, an attorney who represents hemp companies, believes the Mississippi law — if ultimately enacted — is “ripe for challenge.” Like many other state efforts to crack down on hemp products, he argues, it’s primarily aimed at protecting the regulated medical marijuana industry rather than meaningfully addressing a public health concern.
“States often trip over themselves in enacting laws that attempt to regulate cannabinoids by virtue of their intoxicating potential,” Kight said. “The courts have said that a lot of these laws are so vague and ambiguous that they’re unenforceable.”
Yancey says he’s unworried about potential legal challenges. Instead, he’s focused on shepherding the bill through the Legislature and addressing what he views as a threat to his constituents.
“A lot of legal issues are subjective and those who are gonna sue are gonna sue,” Yancey said. “We are regulating it like we would regulate any product in our state.”
