When Congress passed the 2018 Farm Bill, did it intend to legalize intoxicating hemp products? If it did, why didn’t it just legalize marijuana? And why didn’t it address the manufacture or sale of intoxicating hemp products?

I think the answer to all of these questions is clearly “no.” Congress did not intend to open Pandora’s Box to any form of legal intoxicating hemp product. But does what I think – or what Congress intended – even matter? Not to some courts, who think that the 2018 Farm Bill is so patently clear that it really doesn’t even matter what Congress intended.

These issues are admittedly very complicated. There are plenty of folks out there who claim that intoxicating hemp products are completely legal with no caveats. That in my view, is wrong. The law is not settled, the text of the 2018 Farm Bill is anything but clear, and whole lot can (and probably will) change with the upcoming Farm Bill. Let’s take a look at some of the issues below.

The Ninth Circuit didn’t legalize delta-8 nationally

A few years back, a three-judge panel of the Ninth Circuit held as much in AK Futures v. Boyd Street Distro (we wrote about that case here). That case is widely misquoted as having declared delta-8 THC legal nationwide. It did not. The Ninth Circuit is the appellate court for a group of western states and its rulings have no binding precedential value elsewhere.

What AK Futures actually did was affirm a preliminary ruling in a trademark dispute where legality of delta-8 products was one of a number of issues at play. In order to have a protectible trademark, the good or service must be lawful in commerce. The infringer argued that delta-8 products were not lawful. As part of the preliminary injunction, the Ninth Circuit agreed that the plaintiff was “likely” to succeed in establishing that the products were lawful, if they came from hemp and if they contained under 0.3% delta-9 THC. This was a preliminary ruling, but it’s likely that the court would rule similarly on some sort of final ruling. However, to claim that this case is the be-all-end-all for delta-8 is just, well, wrong. The case is not precedential anywhere outside of the Ninth Circuit.

An Arkansas District Court didn’t legalize intoxicating cannabinoids nationally, either

More recently, hemp attorney Rod Kight posted a blog post entitled “DID A FEDERAL COURT ORDER JUST LEGALIZE THCA AND DELTA-8 THC IN ALL 50 STATES?” Rod referred to Bio Gen LLC v. Sarah Huckabee Sanders, a district (lower) court decision out of the Eastern District of Arkansas that only ruled on a specific Arkansas law. So to answer the titular question, no, the court did not legalize anything in all 50 states. The court did, however, strike down a rather poorly drafted Arkansas law that restricted intoxicating cannabinoids on a number of grounds. (As an aside, I think Rod’s analysis is often right, but in this case we diverge.)

Most relevant to this post was the Bio Gen court’s “conflict preemption” analysis. Conflict preemption is a doctrine that finds a state law invalid if it contradicts federal law – i.e., when it is impossible to comply with both state and federal law. Imagine a state law that said you did not have to comply with a federal law. You get the idea.

Now in Bio Gen, the court took the position that the state and federal definitions of “hemp” were in conflict. The court recognized that “Clearly, under the 2018 Farm Bill, Arkansas can regulate hemp production and even ban it outright if it is so inclined.” But while the state could ban hemp production, the court thought that bans on intoxicating hemp products were legal. I don’t get it either. And for some reason, the court forgot to cite the following 2018 Farm Bill provision in its conflict preemption analysis, even though it cited it elsewhere in the opinion: “No preemption. Nothing in this subsection preempts or limits any law of a State or Indian Tribe that . . . regulates the production of hemp . . . and is more stringent than this subtitle.”

While I think the Bio Gen court still had ample reasons to strike down the Arkansas law on different grounds, I just don’t get the conflict preemption argument, and I don’t think an appellate court would agree that states could not enact more stringent laws or prohibit intoxicating cannabinoids. Taking this case to its logical end point would likely result in massive re-writes of hemp laws in all states.

So are intoxicating hemp products legal?

This is not an easy thing to answer and depends on many factors. What intoxicating hemp cannabinoid are we talking about? How is it produced? Is it “synthetic” (and what does “synthetic” even mean)? And what state are we talking about?

Let’s take delta-8 as an example. Delta-8 is generally not expressed in high quantities naturally and is created by converting CBD via a chemical or similar process. The Controlled Substance Act prohibits synthetic THCs, and DEA’s 2020 interim final rule stated that any quantity of synthetic THC is controlled. So according to DEA, delta-8 is illegal. On the other hand, I’ve long argued that under the text of the 2018 Farm Bill, there’s a good argument that delta-8 is legal – even in spite of what seems like clear Congressional intent to the contrary. That’s because the 2018 Farm Bill defines “hemp” as follows:

The term “hemp” means the 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.

In other words, if you take hemp and make something with it, that thing is legal. This is not the position of DEA, but is evidently the opinion of the aforementioned three-judge Ninth Circuit panel. I tend to think that court was right, but at the end of the day, this is by no means a conclusive ruling. Other courts of appeal or the Supreme Court may disagree.

Let’s take another common intoxicating hemp product: THCA flower. I wrote a longer post about that recently here. In a nutshell, people argue that because THCA flower has less than 0.3% delta-9 THC, it is “hemp” even if it has 5% or 20% THCA – even though THCA converts into delta-9 THC. DEA has pretty vocally disagreed with this. In this case, I think the THCA advocates are wrong. I outlined my position in the prior post and we’re well over 1,000 words by now so I won’t recite it again.

Moreover, for any intoxicating cannabinoid or intoxicating hemp product, we also need to look at state law. A number of states outright ban smokable hemp or delta-8 products. Other states (like California) have total THC limits that de facto ban many intoxicating hemp products. No matter what you may think about federal law, those states have their own laws. And unless and until courts in those states start issuing conflict preemption rulings, those laws will be upheld.

This is a hard question to answer but there is no way to be 100% safe or 100% legal. If someone is in a state that allows such products, and has a good federal law argument, the risks are lower. If someone sells THCA flower online in all 50 states, for example, the risks are very high. Moreover, there are a million different practical risks that people almost never consider when looking at the laws. As I mentioned in my THCA post:

Even if someone has what they believe are airtight legal arguments why their intoxicating hemp product is legal, they often fail to consider how costly it would be to get a court to agree. And how long it would take. And how hard it would be to explain to a court or jury. Thinking about the law is not sufficient. You have to consider reality. And reality isn’t cheap or easy.

Indeed, this kind of thing seems to keep happening. Take this example, where a South Carolina man was reportedly arrested for allegedly selling THCA flower that tested over 0.3%. Or this similar example out of Texas. These are just a few reported examples. The point is that being on the right side of the law doesn’t mean you won’t have to pay a boatload of money to be proven right.

When it comes to intoxicating cannabinoids, nothing is easy. Be very skeptical of folks who say that X is legal in all 50 states or that there is no risk with Y. Stay tuned to the Canna Law Blog for more updates on intoxicating hemp products.

One of the most prominent effects of marijuana use is the undeniable craving for food that often ensues, commonly referred to as “the munchies.” When this sensation takes hold, no bag of chips, pack of Oreos, or any other sugary, salty, or fatty indulgence is spared. Interestingly, one might assume that all this snacking would lead to users piling on extra pounds. However, a recent study suggests that the opposite might be true.

In this study, researchers scrutinized Body Mass Index (BMI) data from 33,000 participants participating in the National Epidemiologic Survey of Alcohol and Related Conditions. They compared the BMI of individuals who used marijuana with those who did not, all aged 18 and older, over three years.

While they unearthed a slight average weight discrepancy between users and non-users, amounting to approximately two pounds, this modest variance remained consistent throughout the entire study cohort.

Omayma Alshaarawy, the lead author of the study and an assistant professor of family medicine at Michigan State University, remarked, “A two-pound average difference may not appear substantial, but we identified this trend within a diverse group of over 30,000 individuals, each exhibiting a range of behaviors, and yet, we consistently obtained this result.”

Moreover, the study revealed that marijuana users appeared to experience less weight gain over time than their non-using counterparts.

“Over three years, all participants demonstrated an increase in weight, but interestingly, those who used marijuana experienced a smaller increase than those who never used,” noted Alshaarawy. “Our study contributes to the growing body of evidence indicating this counterintuitive effect.”

Other studies have also observed a similar association between marijuana use and lower rates of weight gain and obesity. However, the exact cause remains a matter of debate. It is possible that certain cannabinoid compounds in marijuana influence metabolism in a manner contrary to popular belief, or it could be that users adjust their behavior to offset the extra calories.

“It might be more of a behavioural aspect, with individuals becoming more mindful of their food intake due to concerns about the munchies after using cannabis,” Alshaarawy suggested. “Alternatively, it could be the cannabis use itself, which may alter how specific cells or receptors in the body respond, ultimately affecting weight gain.”

Regardless of the underlying reasons (which could encompass metabolic and behavioral changes), the researchers emphasized that marijuana should not be viewed as a weight loss or maintenance aid.

“People should not regard it as a means to control or even reduce weight,” Alshaarawy cautioned. “There are numerous health concerns associated with cannabis that far outweigh its potential modest positive effects on weight gain.”

Furthermore, it’s important to note that this observational study focused on identifying correlations rather than establishing causation. This research does not prove that marijuana facilitates weight loss; it simply observes a consistent correlation over three years. To comprehend why this correlation exists, further research is required.

For those curious about why marijuana triggers the munchies, recent research suggests that THC, the psychoactive compound in marijuana, initiates a sequence of brain activity in neural networks responsible for our sense of smell and taste. When this activity reaches a certain threshold, the brain responds as if we are ravenously hungry, setting off the quest for snacks. However, this finding is based on experiments with mice, so the exact mechanism of the munchies in humans still needs to be determined.

The Persistent Two-Pound Gap: Examining the Weight Difference

In a study encompassing over 30,000 participants, researchers set out to explore the impact of marijuana use on body weight by scrutinizing Body Mass Index (BMI) data. What they found was intriguing – a consistent, albeit modest, average weight difference of approximately two pounds between marijuana users and non-users over three years.

This revelation challenges conventional wisdom, as the “munchies,” a well-known side effect of marijuana consumption, typically conjures images of voracious snacking and, consequently, weight gain. However, the study’s data consistently defied this expectation.

While seemingly minor, the two-pound disparity remained remarkably stable across diverse participants, each with a range of behaviors and lifestyles. Omayma Alshaarawy, the study’s lead author and an assistant professor of family medicine at Michigan State University, noted that while two pounds might not seem substantial individually, it becomes noteworthy when observed across such a large and varied cohort.

This persistent difference prompts important questions about the relationship between marijuana use and body weight. Is it purely a matter of behavior, with users compensating for munchies by making more mindful dietary choices? Or does marijuana itself influence metabolism or specific receptors in the body, affecting the rate of weight gain? To uncover the true cause, further research is essential.

While this initial finding piques curiosity, it’s crucial to approach it with caution. This study was observational, focusing on identifying correlations rather than establishing causation. Therefore, it does not definitively prove that marijuana use leads to reduced weight gain. Instead, it highlights an intriguing pattern that invites deeper investigation into the complex interplay between marijuana, appetite, and body weight.

Possible Explanations: Unraveling the Cannabis-Metabolism Connection

Understanding why marijuana users tend to gain less weight than non-users has sparked various theories, offering intriguing insights into this perplexing phenomenon. One prominent hypothesis revolves around the influence of cannabinoids, the active compounds in marijuana, on metabolism. It is suggested that certain cannabinoids may interact with the body’s metabolic processes in ways that counteract the expected weight gain associated with increased calorie consumption. Nevertheless, the precise mechanisms responsible for this potential metabolic impact remain an area of active investigation.

Another theory highlights the role of behavioral adjustments among marijuana users. When individuals partake in marijuana and experience the “munchies,” they may become more mindful of their food intake. This heightened awareness could lead them to make healthier dietary choices to compensate for the indulgent cravings induced by marijuana. Essentially, users consciously manage their calorie intake, which might contribute to the observed reduction in weight gain compared to non-users.

Despite these intriguing hypotheses, it’s important to stress that correlations rather than causes are identified because the study is observational. As a result, even while these ideas offer important insights into the potential mechanisms at work, further research is absolutely necessary to fully understand the complex interactions between marijuana use, metabolism, and behavior in the context of weight management. We might better know how marijuana affects weight gain by interacting with the intricate systems of the human body as scientists continue to investigate this intriguing connection.

Bottom Line

The study disproves popular beliefs about the “munchies,” showing a consistent association between marijuana usage and a somewhat reduced rate of weight gain. Although the two-pound difference may appear negligible to an individual, its consistency over a wide range of people justifies further research into the intricate interactions between marijuana use, metabolism, and behavior. However, since this data is observational and does not prove causation, it is crucial to treat it cautiously. The study also highlights that due to several linked health issues, marijuana should not be used as a weight reduction or maintenance assistance. More investigation is required to determine the precise processes underlying this occurrence and to provide a more thorough knowledge of how marijuana affects appetite control and weight gain.

CANNABIS LOWERS YOUR BMI? READ ON…

CANNABIS LOWERS YOUR BMI IN MOST RECENT MEDICAL STUDY?

Wisconsin may soon become the latest U.S. state to legalize adult-use cannabis. On September 22 of this year, a bill drafted by Sen. Melissa Agard (D-Madison) and Rep. Darin Madison (D-Milwaukee) was introduced in the state legislature. This is the latest in a series of legalization initiatives in the Badger State.

The bill would make it legal for adults in Wisconsin to legally possess up to five ounces of cannabis. Under the new law, possession over the 5-ounce limit would be considered a misdemeanor.

At present, possession of any amount of cannabis is considered a misdemeanor under state law, with subsequent possession offenses being considered felonies. It is worth mentioning that some Wisconsin localities have established more permissive norms. For example, Dane County (where the state capital Madison is located) will generally not prosecute adults for cannabis possession, where the amount does not exceed 28 grams.

Sen. Agard and Rep. Madison’s proposal would also make it legal for localities to permit the establishment of consumption lounges. It also calls for the automatic expungement of non-violent cannabis offenses from criminal records.

Sen. Agard has referred to Wisconsin as an “island of prohibition,” noting that “right now, we are seeing our hard earned money go across the border to Illinois, Michigan, and Minnesota to the tune of tens of millions of dollars each year” (readers unfamiliar with Wisconsin’s geography can check out the state highway map; the state’s two largest cities are both about an hour away from the Illinois border).  This highlights an uncomfortable reality for those states that buck the legalization trend of their neighbors: Their residents will still be able to get cannabis legally, yet the economic windfall will stay on the other side of the state line. Geography is destiny, as the consequences of legalization next door demonstrate.