One representative called it a “wonderful, reefer-smelling bag” and another worried a drug-sniffing dog might alert to him at the airport later as he passed the bundle of products down the Cannabis Policy Committee dais Wednesday.
The bag didn’t contain items sold in legal retail marijuana stores here, or even marijuana items sold on the illicit market. Inside were products purchased legally and without clear state regulation from gas stations, convenience stores and vape shops around Massachusetts, each one purporting to be a legal hemp product under federal law but offering the same kind of high as cannabis.
These intoxicating hemp-based products largely fall into a gray area of the law and between the regulatory cracks. Since the gummies, energy shot-like drink bottles and seltzers proliferated across Massachusetts convenience store checkout counters and social media feeds in recent years, lawmakers and regulators have already expressed a desire to straighten out what is and is not cannabis, and how it should all be regulated.
“In my opinion, if it smells like it, looks like it, I think it is it,” Cannabis Policy Committee co-chair Sen. Adam Gomez said Wednesday after hearing concerns about hemp products from legal cannabis retailers and others.
The products at issue get around the regulation that comes with cannabis by calling themselves hemp products, but the distinction between hemp and cannabis “is really just a legal fiction, a legal creation,” Jesse Alderman, co-chair of Foley Hoag’s nationwide cannabis practice, told the committee.
Hemp is defined as cannabis that contains no more than 0.3% Delta-9 tetrahydrocannabinol (THC), the primary psychoactive compound of marijuana, by dry weight at the time of harvest. The 2018 federal farm bill removed hemp from the Controlled Substances Act and gave oversight of hemp production to federal and state departments of agriculture.
Alderman said 0.3% Delta-9 THC by weight would be a very small amount in a plant, but can be equivalent to a far greater amount of THC in a processed final product “so that while they have a concentration of less than 0.3% while measured dry, they are intensely psychoactive.”
“I mean, they can knock your socks off,” he said.
On the committee’s docket Wednesday was H 168 from Newburyport Rep. Dawne Shand, which would require the Cannabis Control Commission to regulate hemp-derived cannabinoid products and require a hemp endorsement from the CCC for their sale and transfer of such products.
It would define or redefine CBD, cannabinoids, Delta-8 THC, Delta-9 THC, and more. Something would be considered a “hemp-derived cannabinoid product” if it is derived from hemp, intended for human consumption and contains more than 0.5 milligrams of THC per serving and 2.5 mg per multi-serving package.
“The intoxicating hemp industry makes a mockery of cannabis laws in states like Massachusetts, where we have attempted to create a fair, legal and safe cannabis market,” Shand said. “The intoxicating hemp products are pure product competitors — beverages, edibles, pre-rolls, vapes — same high.”
Peter Gallagher, CEO of the licensed cannabis producer and retailer INSA, passed the bag of hemp products among committee members and explained that he bought more than 100 hemp products from more than 20 stores around the state and sent them out for testing.
“What we found was quite alarming. Approximately 90% of those products would qualify as cannabis, meaning that the percentage of Delta-9 was well above 0.3%. In fact, in some cases, it was well north of 10%. Not only that, about a third of those products wouldn’t have passed the strict regulatory testing that’s required by the state of Massachusetts, and would have failed for microbials, pesticides, in some case banned pesticides in the United States, as well as heavy metals and residual solvents,” he said, adding that none of the stores checked an ID and some were not charging sales tax at all.
He said among the products purchased was a package of edibles that contained 1,200 milligrams of THC per piece and about 36,000 mg for the entire package — well in excess of the state’s legal limit for cannabis of 5 mg per piece and 100 mg per package.
“What we’re seeing is cannabis is being sold in gas stations, convenience stores and vape shops under the guise of hemp. This really looks a lot like what we saw in 2019 with the vape crisis, where illegal, unregulated, untested vape cartridges were being sold with cutting agents in them and ultimately led to people harming themselves,” Gallagher said. “I think a lot of consumers today don’t understand that what’s being purchased in these gas stations, convenience stores, vape shops, or even online, is different and potentially more damaging, especially with the synthetic cannabinoids, than what you’re able to purchase in the regulated dispensaries.”
Republican Rep. Michael Soter of Bellingham has also filed legislation to regulate CBD and hemp products (H 179) and to regulate Delta-9 THC (H 173). He said Wednesday that his bills are based on conversations with the owner of a CBD store in his district, someone who has many of the same concerns as Gallagher.
“My biggest part of it is that I think there are a lot of CBD shop owners that are very concerned, like you are, about the Delta-9 levels and making sure that we regulate that, because I think what we’re seeing in the level of that stuff out there is extremely toxic and we need to regulate it and we need to put more focus on that,” he said. “I just want to make sure that we’re kind of all aligned in what we’re trying to do. We’re not trying to hurt your industry, and I’m not trying to kill a CBD industry.”
