This article was originally published on Hoban Law Group, and appears here with permission.
The 2018 farm bill removed hemp from the controlled substances act, and established that henceforth, hemp is to be treated like any other agricultural commodity, traded freely in interstate commerce to be used as a raw material to make a wide range of products. Products that can be made from this newly legal hemp include CBD and other cannabinoid extracts which can be used as ingredients in foods or ointments, industrial materials such as hemp concrete, hemp-derived “plastics,” hemp flooring, textiles from hemp fiber, and a range of products that can be made from hemp seed. It is now clear that hemp has a multitude of uses as a raw material that can be refined into other valuable products, and that markets for many products that use hemp as a raw material are booming.
While this industrial hemp boom was desired and expected following the removal of hemp from the controlled substances act, the rapid growth of a market for unrefined, raw hemp flower for smoking has been somewhat surprising. Who could have foreseen that so many people would be interested in smoking, vaping, and even dabbing cannabis that does not get you high? The rise of smokable flower is an enigma, especially considering the growing availability of legal high-THC cannabis.
Regardless, at this point in cannabis history, in the crazy summer of 2020, there can no longer be any question that smoking hemp flower is hugely popular. People enjoy smoking hemp flower for its CBD (and other non-THC cannabinoids), for the terpenes, for the entourage effect, and for all the benefits of cannabis without the THC. For some hemp growers, especially in Vermont, smokable hemp has proven to be an important part of the income derived from hemp cultivation.
As the popularity of smokable hemp flower skyrockets, several questions arise. Why are some jurisdictions banning smokable hemp? Are such bans constitutional? What about THC, THCA and “theoretical” THC levels in smokable hemp flower? What about shipping? What about law enforcement? These are just a few of the important questions facing the smokable hemp industry in 2020.
“Smokable” Hemp Flower and “Theoretical” THC
One of the first issues in question is how to measure the THC content of raw cannabis flower. The 2018 farm bill defines “hemp” as cannabis containing less than 0.3% Delta 9 THC. This sounds straightforward enough, until you consider “theoretical” THC. A raw cannabis plant contains some small amounts of Delta 9 THC, and a much larger amount of THCA. When the plant is heated, either by smoking or as part of an extraction process, the THCA is converted to Delta9 THC. This dichotomy can result in two separate test results for the same plant matter: one result that considers only the existing Delta9, and another result that incorporates the THCA in anticipation that it will be converted to Delta9 when the plant matter is heated or burned.
On the federal level, the testing parameters have been established by the USDA’s interim hemp rules, which was issued in October of 2019. Under that interim rule, plant matter must have under 0.3% THC, including the theoretical Delta9 from THCA. As a practical matter, requiring the inclusion of Delta9 THC in potency tests makes much of the smokable hemp flower unlawful, as this method of testing will result in THC levels over 0.3% for much of the current hemp crop. This is one of the reasons that some states have so far refused to adopt their state plans to comply with the interim USDA rule, and requested the rule be revised.
For an example of another approach, consider the method outlined in the Vermont hemp rules, which were issued in May 2020. Like the interim USDA rule, Vermont requires analysis of both Delta9 THC and THCA. However, so long as Delta9 remains under 0.3%, the total theoretical THC (including THCA) can be has high as 1.0%. This may seem like a small difference, but it is an essential difference to growers of smokable hemp flower. Some states (including all states with a USDA approved hemp plan) already require adherence to the limits in the interim USDA rule. It will much more difficult to grow legal smokable hemp in these states. Hemp growers are constantly working to develop strains that are high in cannabinoids other than Delta9 THC. But in the meantime, the ability to work legally with strains that may contain slightly higher levels of THCA is essential to the smokable hemp flower business.
Attempts to Ban Smokable Hemp Flower
In some states (Vermont, Colorado) there is a vibrant smokable hemp flower industry, doing an unexpectedly brisk business both in stores and online. The industry has the full support of state governments, and agencies have created rules for testing and labeling smokable hemp products.
In other states (North Carolina, Texas, Iowa, Massachusetts, Louisiana) there have been attempts to ban the possession and sale of smokable hemp.
For example, Iowa’s recently enacted law makes it a serious misdemeanor to smoke hemp, or to sell smokable hemp, although the hemp flower itself is legal. The new law sets fines for violators of the new hemp regulations – including the possession and sale of smokable hemp products and food and beverages containing CBD – at up to $300 for the first …