Legislators discussing ways to curb sale of Illegal hemp-based products

A slide from a Mass. Association of Health Boards presentation to the Committees on Agriculture and Cannabis Policy displayed various hemp-based products found being offered for sale in Massachusetts.

A slide from a Mass. Association of Health Boards presentation to the Committees on Agriculture and Cannabis Policy displayed various hemp-based products found being offered for sale in Massachusetts. Mass. Association of Health Boards presentation

By ALEXA LEWIS

Staff Writer

Published: 06-17-2024 4:40 PM

A statewide proliferation in recent years of intoxicating, illegal hemp-based products — gummies, energy shot-like drink bottles and seltzers, to name a few — has raised concern among state officials and the cannabis sector alike.

While these products are illegal, they have proven a challenge to regulate and continue to appear in places like gas stations and restaurants, posing potential health risks and competing with properly licensed cannabis dispensaries.

An abundance of reports surfacing about these products prompted the Joint Committee on Agriculture and the Joint Committee on Cannabis Policy to call for an oversight hearing last week to discuss hemp regulations. The hearing featured testimony from panels at the Massachusetts Association of Health Boards, Massachusetts Department of Agricultural Resources, Department of Public Health, and Cannabis Control Commission.

“I think it’s been tremendous that we have wanted to work together with our partners in the administration to support ... Massachusetts hemp farmers and producers, while also — and this is important — gaining a full understanding of the public health implications of cannabinoid-containing products derived from hemp,” said state Sen. Jo Comerford, D-Northampton, co-chair of the Joint Committee on Agriculture.

Legal hemp is defined as cannabis that contains no more than 0.3% Delta-9 tetrahydrocannabinol (THC), the primary psychoactive compound of marijuana, at the time of harvest — meaning hemp-derived products don’t contain enough THC to create the “high” traditionally associated with marijuana.

According to Ashley Randle, commissioner of the Massachusetts Department of Agriculture Resources, the distinction between hemp and marijuana is a legal one: “Cannabis that is not certified as hemp at the time of harvest by the appropriate federal, state, or tribal authority is considered marijuana, and remains a schedule one controlled substance.”

But that doesn’t mean that everything derived from hemp is exempt from being a controlled substance or is lawfully allowed to be included as an ingredient in products like foods, beverages, cosmetics and more. And there are dozens more cannabinoids aside from the state-regulated Delta-9 THC that are present in marijuana and can be derived from hemp, including Delta-8 THC and Delta-10 THC.

The legal distinction between hemp and marijuana is important, because it determines which state body’s jurisdiction it falls under. Hemp falls primarily under the jurisdiction of the Department of Agricultural Resources, while marijuana businesses are licensed by the Cannabis Control Board.

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But hemp-based products have been popping up at places licensed by the Alcoholic Beverages Control Commission like liquor stores, bars and restaurants, and retailers overseen by local boards of health like tobacco and vape shops. And the state Department of Public Health has gotten involved since it regulates food and drinks.

Health inspectors told the committees at the hearing that this type of hemp-based product has been around for about six years, but has become more mainstream recently. They are labeled as things like “Delta-8,” “Delta-10” or “THC In A Bottle,” and often come in bright packaging sometimes meant to mimic the look of legal products, like Skittles, which officials worried would make these products, which do not have age regulations, particularly enticing to children.

“Our partners in the administration and local public health workers testified that intoxicating hemp products — while illegal — are prevalent currently in communities across the commonwealth and pose a danger to public health,” Comerford said. “Children and adolescents are especially vulnerable as these products have no age restriction and are easily accessible at gas stations and convenience stores.”

Rep Paul Schmid, co-chair of the Agriculture Committee, said at last week’s hearing, “My goodness. We have a situation where intoxicating hemp products are being produced, probably from hemp that isn’t grown in Massachusetts, in labs that have no supervision, being put into packages that have no age requirements, and they’re competing with our lawful cannabis retailers. This is a heck of a situation.”

Ordered off shelves

On May 29, the ABCC and DPH issued an advisory stating “it is unlawful to manufacture and/or sell food or beverages containing hemp derived CBD and/or THC” and ordering that the “products must be taken off the shelf immediately.”

Cheryl Sbarra, executive director and senior staff attorney for the Massachusetts Association of Health Boards, said the ABCC/DPH guidance is helpful, but it does not cover all locations where hemp-based products are being sold. She said stores that sell shelf-stable food — “think Twinkies and Coke,” she said — are not required to have a food service permit, which means local boards of health have fewer options for taking action against a business that continues to sell the products.

Sbarra also said that product manufacturers have “expanded” the legal definition of hemp to claim that any product that has a Delta-9 THC concentration of less than 0.3 percent “is by definition hemp,” leading to “what is perceived to be a loophole.” This perceived loophole, combined with the above regulatory difficulties, present a formidable public safety challenge. As the products become more popular, officials worry they could fall further into a legal gray area.

Better regulation?

After the oversight hearing, state officials believe they have a better understanding of this issue, and are working toward more effective regulation.

“I do believe that the oversight hearing exposed a vulnerability, a gap, in the state’s ability to police this in an effective way,” Comerford told the Gazette. “The next step for my team and I is to look at legislation.”

Comerford said that she’s currently working to determine whether this issue needs to be addressed through legislation or regulation. Legislation would involve the introduction of a new bill, while regulation would focus on supporting state agencies to act more effectively within their purview.

Comerford also plans to emphasize public education efforts, especially for children and their caregivers, who may not recognize the dangers that lurk within these products’ innocuous packaging. Currently, she is working toward hosting a public education webinar.

“I want them to understand what they’re looking at,” she said.

This story contains content from the State House News Service.

Alexa Lewis can be reached at alewis@gazettenet.com or on Instagram and Twitter at @alexamlewis.