As a longtime cannabis attorney in Minneapolis, I noticed that the Milwaukee Common Council recently voted to restrict purchases of hemp-derived THC products to adults.
This was done in an apparent response to the hospitalization of two children who got sick after consuming THC gummies.
Might I suggest that the state of Wisconsin take this a step further? It is time for the state to regulate hemp-derived products to ensure that consumers know that that such products are safe and to prevent them from being sold to children.
Six years ago, the federal government adopted the 2018 Farm Bill, which distinguished hemp from marijuana and removed hemp from federal controlled substance schedules. The 2018 Farm Bill also defined “industrial hemp” to include not only “the plant Cannabis sativa L. and any part of that plant,” but also “the seeds thereof and all derivatives, extracts, cannabinoids … with a (delta-9 THC) concentration of not more than 0.3 percent on a dry weight basis.”
What is delta-9 THC, you ask.
That’s the cannabinoid that gets you high when you smoke marijuana.
But I thought we were talking about hemp, you say.
Yep, hemp and marijuana are the same plant: cannabis sativa L. The distinction between hemp and marijuana is purely a legal distinction based upon the amount of delta-9 THC that’s in the plant and its derivatives. Hemp has delta-9 THC of 0.3% or less; marijuana has delta-9 THC of 0.3% or more.
Well, surely 0.3% delta-9 THC is not enough to get anyone high, you might say.
Oh, dear reader, you underestimate the ingenuity of cannabis entrepreneurs.
Almost immediately following the passage of the 2018 Farm Bill, the American public witnessed a rapid proliferation of CBD stores. Cannabidiol, or CBD, is one of more than 100 cannabinoids found in the hemp/marijuana plant. Taken in large-ish doses, CBD is known to have an analgesic effect, which soothes pain, inflammation and anxiety.
CBD products sold pretty well. But there was more innovation to come. Along with CBD and delta-9 THC, another of the 100-plus cannabinoids in the cannabis plant is delta-8 THC. Often called “marijuana light,” delta-8 THC was not widely known prior to the passage of the 2018 Farm Bill. But because the 2018 Farm Bill only limited the amount of delta-9 THC, cannabis chemists realized that they could sell products with as much of the other cannabinoids as they wished.
Soon, delta-8 THC vapes flooded the U.S. market – particularly in states without access to adult-use cannabis – because delta-8 THC gets people high, too.
Indeed, even 0.3% delta-9 THC, when concentrated into edible products that contain 10 milligrams or more of delta-9 THC per serving, is plenty to get most people high.
In other words, by passing the 2018 Farm Bill, the U.S. Congress (almost certainly unknowingly) legalized intoxicating cannabis products throughout the United States.
As delta-8 vapes and delta-9 gummies flooded smoke shops nationwide, they were often sold in potency levels and/or milligram amounts that could numb a horse. Because no governmental agency required any testing of these products, moreover, consumers often got sick and, tragically, sometimes died.
Indeed, the “vape crisis” of 2019 was directly tied to Farm Bill legal vapes that included a harmful additive (vitamin E acetate) that never would have been included in regulated products.
In response, many states — caught offguard by the hemp-THC revolution — responded with laws aimed at quelling the tide. In Minnesota, where I have worked on cannabis law and policy since 2018, the Minnesota Legislature adopted an “edible cannabinoid product” statute, which legalized hemp-derived THC gummies and beverages so long as they contained no more than 5 milligrams per serving or 50 milligrams per package (for gummies) and 10 milligrams per can (for beverages). As the law’s name suggests, hemp-derived THC vapes were rendered illegal. Additionally, sales of such edible products were restricted to adults.
By passing its law in 2022, Minnesota recognized that it could not stop the flow of hemp-derived THC products into the marketplace, but it could require testing and labeling.
Now, more than three years later, Wisconsin faces the same conundrum.
Rather than passing its own hemp statute, Wisconsin adopted the 2018 Farm Bill as its own. As a result, all of the untested, unregulated high-potency vapes and high-milligram gummies that once stuffed the shelves of smoke shops in Minnesota are now widely available for sale in Wisconsin.
The Wisconsin Legislature would be wise to adopt a version of Minnesota’s hemp-derived THC law. Without such a regulatory scheme, consumers have no idea what they’re putting into their bodies. Furthermore, as it stands now, there is no age restriction on sales to minors. Wisconsin, like Minnesota, should limit sales of such products to adults.
I recognize that the Wisconsin Legislature is controlled by the Republican Party, which traditionally is uneager to embrace cannabis legalization. But here’s the thing: These hemp products are already legal and available for sale everywhere in Wisconsin — even to kids. Wisconsin would be wise to follow Minnesota’s lead by enacting statewide regulatory guardrails on the sale of such products.
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