How wholesalers and retailers across the United States are relying on murky federal and state laws to sell THC edibles at a dispensary near you

Across the country, cannabis-friendly dispensary businesses are increasingly selling products advertising that they contain traditional THC regularly associated with marijuana (as compared to hemp-derived CBD, which is widely considered “legal”).

These products often contain notes or disclaimers stating “less than 0.3% THC by weight”, “Compliant with the 2018 Farm Bill”, or some similar phrasing.

This trend is occurring across the country, even in states traditionally considered hostile to cannabis, such as Tennessee.

But how is this possible?  What is the Farm Bill, and why does weight matter? And is it legal?

Enter what is considered a seriously gray area in federal and many states’ laws.

The United States Congress kicked things off with the passage of the 2018 Farm Act (the “Farm Act”).

The Farm Act lifted the controlled substance designation for “hemp” under the federal Controlled Substances Act (”CSA”).

Hemp is a subspecies of the broader cannabis plant with traditionally lower THC content than its cousin, traditional marijuana plants.

Hemp is defined by the Farm Act as:

[T]he plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis (emphasis added).

So, hemp can contain no greater than 0.3% THC, on a dry weight basis, at the federal level.

Otherwise, it is classified as marijuana that runs afoul of the CSA and, thus, federal law.

States have taken varied approaches aligning with or beyond the Farm Bill, even those traditionally considered hostile to cannabis/marijuana.  Some states with robust recreational or medical legalization have adopted frameworks around the Farm Bill and beyond (e.g., California, Colorado, etc.).

But on the other end of the spectrum, many states traditionally hostile to cannabis have adopted a fairly progressive hemp statutes and regulatory frameworks.

As an example, Tennessee's hemp framework is contained in Tennessee Code Annotated § 43-27-101 through -108 (the “Hemp Law”).

The Hemp Law set up Tennessee’s legal hemp legal and regulatory framework (note this article doesn’t fully delve into the regulatory, testing, licensing, and other frameworks for hemp growers, producers, etc., in Tennessee or any other state).

THC is defined under subsection -101 of the Hemp Law as “delta-9 tetrahydrocannabinol”.

This is the traditional psychoactive compound traditionally associated with marijuana (what gets people “high”).

This is compared to cannabidiol (”CBD”), another compound derived from hemp often containing the bulk of products in dispensaries in states where marijuana has not otherwise been legalized medically or recreationally.

CBD products are known to lack or have such small quantities of THC that the psychoactive “high” effect does not occur.

“Hemp” is further defined by subsection -101 of the Hemp Act in a way that is virtually identical to the Farm Act, including the 0.3% THC by dry weight basis language.  This is a trend adopted by many other states' hemp programs to comply with the federal Farm Act.

It follows that “derivatives” include oil, "mother liquor" or other byproducts of hemp.  These derivatives are then included in edible products that allege to contain THC in substantial amounts for psychoactive effect (e.g., 2.5 or greater milligrams)

So what does the limitation “on dry weight basis” mean?

One school of thought argues that the Farm Bill’s definition (and by implication, the Hemp Law and similar state regulatory frameworks) was only meant to apply to the plant’s mass while still on the farm.  We’ll call them the BioMassers.

This means this measurement is not the THC content in the finished products (e.g., cookies, gummies, chocolates, etc.) sold in retail dispensaries or on websites for businesses based in Tennessee and other states.

BioMassers further argue that the Farm Act and Hemp Act’s “dry weight basis” measurement does not provide for moisture, oil, or other material containing the psychoactive THC compound in such edibles.

If true, this would mean measurement of the finished product potentially miscalculates the legal THC limit.

THC calculations based on the finished product and/or failing to account for moisture, gummy product, or oil in the final product potentially run afoul of the Farm Act, the CSA, and state-level marijuana prohibitions, like the Hemp Law.

BioMassers caution that, without further guidance on measurement processes by relevant federal regulatory bodies, there remains significant concern over the legality of edible products and the 0.3% body weight metric relied on by many THC wholesalers and retailers today.

Another school of thought believes many of these businesses are operating legally, or at least in a sufficiently gray area.  We’ll call them the Gray Matters

The Farm Bill’s definition of hemp (noted above) includes extracts, derivatives, and cannabinoids.  The argument is that the finished products, like edibles, are just extracts or derivatives.

As long as the finished product is below the 0.3% threshold in the end product, the Gray Matters argue, they are “legal” under the Farm Bill (and, assumedly, the Hemp Law and similar state laws).

Gray Matters further note that the dry weight basis should mean the water weight must be removed in the calculation.

Practically, that means edible products like gummies, cookies, brownies, etc., can be produced as Farm Bill and Hemp Law (and similar states' laws) compliant much easier than products that are primarily water-based, like hemp-derived canned drinks.

For example, an edible cookie contains 200 grams total mass.  Under the Gray Matters' approach, the Farm Bill and similarly drafted state laws arguably permit up to 600 milligrams of THC derived from hemp - significantly more than any person would ever need to achieve a psychoactive "high" effect.

In summary, Tennessee-based wholesalers and retailers face significant uncertainty under the Farm Bill and related state laws like Tennessee’s Hemp Law, but many have adjudged the risk worthwhile.

Remember that the FDA retains the authority to regulate consumable products in the Farm Bill.

Generally, all ingredients in the food are recognized as safe or otherwise approved by the FDA.  Similarly, ingredients in dietary supplements must generally pass the FDA’s safety reviews.

Check back next time for a further dive into federal and state regulatory agencies (FDA, USDA, DEA, etc.) and how they have interpreted the Farm Bill, dry weight basis, and related regulations (or lack thereof) on the states.

DISCLAIMER: While I am a lawyer who enjoys operating outside of the traditional lawyer and law firm “box”, I am not your lawyer. Nothing in this post should be construed as legal advice nor does it create any attorney-client relationship. The material published above is intended for informational, educational, and entertainment purposes only. Please seek the advice of counsel, and do not apply any of the generalized material above to your individual facts or circumstances without speaking to an attorney.

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