State AGs Inflame Hemp Hysteria With Letter to Congress

State AGs Inflame Hemp Hysteria With Letter to Congress

State Attorneys General (AG) have a history of getting it wrong with respect to hemp and hemp products. Earlier this week attorney Amber Lengacher with my firm wrote an article about the Arizona AG’s position statement on delta-8 THC. Previously, I engaged in good faith with the South Carolina AG, only to have him issue a convoluted and illogical legal opinion that delta-8 THC was illegal. Today, a group of 20 state AGs signed a letter to Congress “to address the glaring vagueness created in the 2018 Farm Bill that has led to the proliferation of intoxicating hemp products across the nation and challenges to the ability for states and localities to respond to the resulting health and safety crisis.” A copy of the letter is below. Aside from failing to provide any evidence of a “health and safety crisis”, the letter also fails by not understanding the hemp market, not offering any concrete proposals, undermining small businesses, and ultimately attempting to interfere with the right of adults to make choices of what legal products they decide to consume without government interference.

First, the state AGs fail to understand that protecting hemp farmers means protecting their end markets. Although hemp fiber and seeds are promising markets, they have not taken hold in a way that incentivizes widespread adoption of hemp as a cash crop. Instead, the current end markets for hemp primarily take the form of consumer products, some of which are intoxicating. As many readers are aware, a Whitney Economics report from October 2023 states:

Currently, the total demand for hemp-derived cannabinoids is valued in excess of $28 billion and supports the employment of 328,000 workers, who earn $13 billion in wages. Overall, the total economic impact of the hemp-derived cannabinoid industry on the U.S. economy is in excess of $79 billion. While they may seem large, these estimates are actually conservative, because they do not account for demand and employment from gas stations, grocery stores and convenience stores.

In other words, protecting hemp farmers means protecting these hemp cannabinoid products.

Additionally, attempting to regulate hemp products based on their capacity to produce intoxication is the wrong approach. It’s a classic “Fool’s Errand” that I have written about before. To begin, it is impossible to define “intoxication”, in a way that is workable from a legal or regulatory standpoint. Attempting to eliminate or control intoxication by redefining “hemp”, prohibiting an entire class of hemp products, and/or via capping the allowed milligrams of THC and other compounds that are allowed in a product or package is totally unnecessary. This approach amounts to a “Nanny State” method of addressing an issue that should instead be based on an adult’s personal preference.

As I’ve discussed before, rather than regulating hemp and its products based on “intoxication”, the proper approach should be focused on:

(a) restricting access by minors (ie, age gating),

(b) requiring quality control for production and manufacturing of hemp and hemp products (ie, requiring manufacturers to comply with cGMP and other objective quality standards), and

(c) requiring proper and informative labeling/marketing (ie, ensuring that the consumer is adequately informed about the product).

This three-pronged approach allows adults to make an informed decision about the products they choose to purchase and consume while limiting access to minors and sidestepping the impossible task of defining and regulating products based on their potential to cause intoxication. To use an alcohol comparison, an adult can purchase a low alcohol “session” beer, a nice bottle of wine, or a large “handle” of hard liquor. The choice of “potency” is left up to the adult consumer, who can rest assured that the products are properly manufactured and that the label will provide sufficient information about the alcohol content to help her make an informed decision about what to purchase and how much to consume. Of course, alcohol causes both intoxication and a host of health and social problems. The fact that it is lawful and widely available across many retail distribution platforms, including convenience stores, while hemp products are being decried as a public health crisis is, frankly, insane. 

Finally, I’d like to comment about that last point, namely, the sale of hemp products in convenience stores, another topic I have previously discussed but is worth revisiting. I frequently hear the claim that “hemp products are sold in convenience stores” used as an argument about how bad and unregulated the hemp industry is. This is a red-herring. Of all the possible distribution outlets for hemp products, convenience stores are among the best. Think about it. For decades, convenience stores have been selling highly regulated products such as alcohol and tobacco that are subject to strict age-gating. To be clear, I am in favor of all properly-regulated distribution channels and platforms for hemp products, from ecommerce sites to boutique hemp wellness centers to convenience stores. However, to claim that the hemp industry is somehow bad and unregulated because its products are sold at convenience stores, which are highly regulated and frequently subject to agency audits, licenses, high fines, and even criminal action if certain products are sold to minors, is ridiculous. The “convenience store” argument against hemp should die because it is totally unfounded.

There is a war raging against hemp, but it goes much deeper than that. At stake is the future of cannabis reform in the US, the ability for small businesses to thrive in an emerging market, and the right for adults to make their own determination about what they choose to ingest. Provided that regulations are in place that address age-gating, quality control, and proper labeling, it is difficult to imagine why we need to concern ourselves with “intoxication” or any of the overreaching regulations and blood-sucking tax regimes that are currently strangling the marijuana industry. As the DEA seems to be balking at even a modest rescheduling of marijuana to schedule 3, hemp stands as the new path forward for broad cannabis reform.

Tell your state AGs to get on the hemp train or get voted out. Here is their letter:
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March 20, 2024
Rod Kight, Cannabis industry attorney
ATTORNEY ROD KIGHT REPRESENTS CANNABIS BUSINESSES THROUGHOUT THE WORLD.

Rod Kight is an international cannabis lawyer. He represents businesses throughout the cannabis industry. Additionally, Rod speaks at cannabis conferences, drafts and presents legislation to foreign governments, is regularly quoted on cannabis matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the cannabis industry. You can contact him by clicking here

 

11 comments on “State AGs Inflame Hemp Hysteria With Letter to CongressAdd yours →

  1. If the states aren’t regulating marijuana the same way you’re asking them to regulate hemp, why the heck would you expect your argument to make a lick of sense?

    99% of hemp farmers will go out of business once real weed is legal everywhere, hemp is a sham.

    Replace hemp with regular cannabis in your rant, and it makes sense. Otherwise, it’s hard to take someone seriously when they’re ignoring that the proliferation of THC via the farm bill is an UNINTENDED consequence, not the intended one,

    1. Sounds like you’re a marijuana grower or you’re one of the suckers who paid millions of dollars for a “sham” license. I have news for you, get over yourself because hemp is here to stay. It’s literally the same exact plant, ask any real geneticist. I’m sorry you’re so butt hurt over our $100 billion industry, but maybe you should stop being a grumpy SOB and join the rest of the USA because we’re here to stay.

    2. Thank you for taking the time to comment on this article. Believe it or not, we are actually mostly in agreement. This is because hemp IS cannabis. In fact, the overarching theme of my article, which I think you missed, is that with respect to my proposal we should ultimately be replacing the word “hemp” with the word “cannabis”. In other words, the regulatory model for marijuana is broken; however, the hemp model and three-pronged regulatory approach I propose is how we should regulate cannabis- all cannabis- going forward. Unfortunately, that cannot happen immediately, but we are SIGNIFICANTLY closer to full legalization via the hemp model than we are with the marijuana model, so supporting hemp and hemp products is the best way to fully legalize and normalize cannabis.

      With respect to your statement that the proliferation of THC via the Farm Bill is an unintended consequence, I disagree. First of all, there is no evidence in the Congressional record to suggest that it was not the intended consequence. And, while we can assume that Mitch McConnell did not intend for THC proliferation to be a consequence of enacting the 2018 Farm Bill, we can also assume that the cannabis-friendly lawmakers in Congress did view the Farm Bill as an opportunity to further legalize and liberate cannabis/THC. In fact, as part of some litigation against the DEA regrading hemp we had many members of Congress sign a letter stating that they intended for the Farm Bill to legalize “hot” hemp extract to be used in downstream products. Second, the Farm Bill’s language is actually very specific and granular. It’s difficult to imagine that Congress did not intend for the proliferation of cannabis compounds, including THC, when it defines “hemp” with respect to ALL of its “derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers“. Finally, one of the first things a law student learns is that when a law is clear the “intent” of the legislative body is irrelevant. It is only when the verbiage in a statute is ambiguous or internally inconsistent that the “intent” matters. Even then, the intent can only be used when it is clear in the record. The 2018 Farm Bill’s language is very clear and there is no Congressional record showing that the intent is contrary to the legal opinions I have espoused and which the hemp industry is using to support its advancement and evolution- an evolution that is furthering the cause of cannabis itself.

      Again, I appreciate and respect your passion. Hopefully, you will re-read this article and my proposals with an open mind and a new understanding. Hemp is the best vehicle for the advancement of cannabis and I hope that you will join the fight.

      -Rod

    3. The product is the same your trying to make arguments over what type of prohibition is better. It’s all progress, all positive, even if the changing dynamics of the free market means some doors open and others close.

      Saying hemp bad, State cannabis good, is just an argument for a version of prohibition that provides an advantage.

      You don’t see hemp companies, trying to say that we need to close the state, marijuana markets, because then they would be arguing in favor of their version of prohibition.

  2. I find it a touch disturbing that the letter from the Attorney Generals reads almost word for word like a policy paper from state monopoly marijuana. It’s like someone from that side of the industry wrote down all of their propaganda and got the AGs to sign it.

    Big marijuana is waging a propaganda battle to try to maintain their state provided monopolies and to get rid of competition from hemp. Unfortunately there are many people in politics who aren’t educated enough on this topic to know that they’re being manipulated. Either that or they have a financial interest that prevents them from being objective.

  3. I mailed this today, I hope others will do the same.

    To: Honorable Josh Stein, Attorney General of North Carolina
    114 West Edenton Street
    Raleigh, NC 27603

    Re: The Five-Year Reauthorization of the Farm Bill Letter Dated March 20, 2024

    Dear Attorney General Stein,

    It is with concern that I respond to your recent show of support by signing an open letter to the Committee on Agriculture, Nutrition, & Forestry, United States Senate. The letter has several intentional misstatements that amount to fear mongering promoted by large corporations involved with controlling the cannabis-marijuana industry message that hemp is bad and should be restricted with additional legislation.

    1) There is no Public Safety Crisis caused solely by hemp products. Are there product safety concerns?
    Yes, responsible cGMP manufacturing with state oversight, correct labeling requirement by the FDA and age restrictions for hemp product sellers is needed in the industry. North Carolina HB563 may evolve to offer North Carolinians confidence in available hemp products and address some of the concerns raised by the letter you signed.

    My personal concern with HB563 is that it becomes illegal to sell any hemp product on streets or in parks regardless of manufacturing, testing or labeling. Our small family farm will be out of business as we sell our hemp products at local farm markets held in parks and on streets.

    2) The Agricultural Improvement Act of 2018 is clear. Cannabis sativa L. can be either hemp or marijuana with clear definition. We should work together responsibly to remove cannabis from the DEA Schedule 1.

    My hope is that you take your position in this industry as a partner who is willing to work diligently together and help us all succeed moving forward, not backward to the 1930’s.

    Respectfully,
    Dave Palmer, Owner
    MiHfarm.com

    1. Dave- Your letter is pitch-perfect and I appreciate you drafting and sending it. I strongly recommend that others send similar letters to their state AGs. -Rod

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