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Intoxicating Hemp Product Laws are More Complicated Than They Seem

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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 The case is not precedential anywhere outside of the Ninth Circuit.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.

Is it wise to sell intoxicating hemp products?

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:

[P]ractically speaking, claiming that THCA products are legal is a tough sell to law enforcement or a court that is not familiar with the nuances of federal hemp laws. Imagine a truck driver gets pulled over with a car full of THCA products with 25% THCA. Those products, when tested, will have levels of THC in the double digits. That driver is going to jail, and will have to do their best to persuade a court that a gap in testing requirements under the 2018 Farm Bill makes their product lawful. Even assuming that argument is solid, there are just too many possibilities that law enforcement won’t agree. This is an issue that would likely need to be resolved in the appellate courts, which would be expensive, time consuming, and risky.

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.



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The Grinch Stole SAFE Banking from the Cannabis Industry This Christmas, Yet Again!

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no safe banking in 2024

The landscape of cannabis legislation in the United States has been a complex and evolving issue, particularly concerning banking regulations. As of December 2024, it has become official: the current Congress will not provide any protections for banks that serve state-legal marijuana businesses. This decision has significant implications for the cannabis industry, which continues to grow rapidly despite the lack of federal support. In this article, we will explore the reasons behind this decision, the implications for cannabis businesses, and the broader context of cannabis legalization in America.

 

The State of Cannabis Legalization

 

 A Growing Industry

 

The cannabis industry has seen remarkable growth over the past decade. As of late 2024, 23 states and Washington D.C. have legalized recreational marijuana use, while 38 states allow medical marijuana. According to recent estimates, the legal cannabis market in the U.S. is projected to reach over $40 billion by 2025. This growth has been fueled by changing public perceptions of marijuana, increased advocacy for legalization, and significant tax revenues generated by state-legal cannabis sales.

 

 The Banking Dilemma

 

Despite this rapid expansion, cannabis businesses face unique challenges, primarily due to their inability to access traditional banking services. Federal law classifies marijuana as a Schedule I controlled substance under the Controlled Substances Act. This classification creates a significant barrier for banks and financial institutions that wish to work with cannabis businesses, as they risk federal penalties for facilitating transactions related to an illegal substance.

 

As a result, many cannabis companies operate on a cash-only basis. This situation not only poses safety risks—such as increased theft and violence—but also limits these businesses’ ability to manage finances effectively, pay taxes electronically, and build credit histories.

 

 Legislative Attempts at Reform

 

One of the most prominent legislative efforts aimed at addressing these banking issues is the Secure and Fair Enforcement (SAFE) Banking Act. First introduced in 2019, the SAFE Banking Act sought to provide protections for banks that serve legal cannabis businesses by preventing federal regulators from penalizing them for doing so.

 

The act garnered significant bipartisan support in both the House and Senate. In previous sessions of Congress, it passed multiple times in the House but faced hurdles in the Senate due to opposition from certain lawmakers who were concerned about broader implications of marijuana legalization.

 

In light of ongoing discussions about federal spending and budgetary priorities, advocates had hoped that some version of the SAFE Banking Act would be included in recent spending bills. However, during negotiations leading up to December 2024, a House committee led by Republicans removed any provisions related to marijuana banking protections from key spending legislation.

 

This decision reflects a broader trend within Congress where discussions around cannabis reform have become increasingly contentious. While there is still bipartisan support for certain aspects of cannabis legislation—particularly when it comes to medical use—more comprehensive reforms like banking protections have struggled to gain traction.

 

 Implications for Cannabis Businesses

 

Continued Cash-Only Operations

 

The removal of banking protections means that many cannabis businesses will continue to operate primarily on a cash basis. This situation presents several challenges:

 

  • Safety Risks: Cash-only operations make cannabis dispensaries and cultivation facilities prime targets for theft and robber Employees often have to handle large amounts of cash daily, increasing their risk of violence.

 

  • Operational Inefficiencies: Without access to banking services, businesses cannot easily manage payroll or pay bills electronically. This inefficiency can lead to operational delays and increased costs.

 

 

 

Impact on Public Safety

 

Advocates argue that providing banking access would enhance public safety by reducing the amount of cash circulating within the community. By allowing cannabis businesses to deposit their earnings into banks, it would minimize the risks associated with cash transactions, making both employees and customers safer.

 

Moreover, having a transparent financial system would help law enforcement track illicit activities more effectively. Currently, without proper banking oversight, there are concerns that some cash-only operations may be involved in money laundering or other illegal activities.

 

Politics and Public Opinion

 

Changing Attitudes Toward Cannabis

 

Public opinion on marijuana legalization has shifted dramatically over recent years. According to various polls, a significant majority of Americans now support legalizing marijuana for both medical and recreational use. This shift has put pressure on lawmakers to address outdated federal policies regarding cannabis.

 

Despite this growing acceptance among the public, political divisions remain strong within Congress regarding how best to approach cannabis reform. Some lawmakers advocate for full legalization at the federal level, while others prefer a more cautious approach that prioritizes regulation over outright legalization.

 

 The Role of Advocacy Groups

 

Advocacy groups play a crucial role in pushing for legislative change regarding cannabis banking protections. Organizations such as the National Cannabis Industry Association (NCIA) and Americans for Safe Access (ASA) have been vocal proponents of reforming banking laws to support state-legal cannabis businesses.

 

These groups have mobilized public support through campaigns highlighting the safety risks associated with cash-only operations and advocating for policies that promote financial inclusion for cannabis entrepreneurs.

 

Future Prospects for Cannabis Banking Reform

While current congressional efforts have stalled regarding marijuana banking protections, there are still potential avenues for reform:

 

 

  • Incremental Reforms: Rather than pursuing comprehensive federal legislation like the SAFE Banking Act all at once, lawmakers may consider incremental reforms that address specific issues related to banking access without fully legalizing marijuana at the federal level.

 

 

The Role of Public Awareness

 

As public awareness about the challenges faced by cannabis businesses grows, there may be increased pressure on lawmakers to act decisively on this issue. Continued advocacy efforts can help ensure that banking reform remains a priority on Congress’s agenda.

 

Conclusion

 

The decision by Congress not to include marijuana banking protections in its current spending bill underscores ongoing tensions surrounding cannabis legislation in America. While public opinion increasingly favors legalization and reform, political divisions continue to hinder progress on critical issues such as banking access for state-legal marijuana businesses.

 

As the industry continues to grow despite these challenges, stakeholders must remain vigilant in advocating for change while exploring alternative solutions at both state and federal levels. The future of cannabis banking reform remains uncertain; however, with continued advocacy and public support, there is hope that meaningful progress can be made in addressing these pressing issues facing one of America’s fastest-growing industries.

 

SAFE BANKING SINCE 2018, WHAT A FAILURE, READ ON…

SAFER BANKING ACT FAILS AGAIN

SAFER BANKING ACT FAILS AGAINS, SAME OF BANANA IN THE TAILPIPE!



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HHC vs. Delta 9: Differences & Similarities

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Cannabis has so many compounds, and two that have been making the rounds lately are HHC and Delta 9 THC. They’re not the same thing, even though they’re both cannabinoids that interact with the body’s endocannabinoid system. Some people want a mild, steady experience, while others might be looking for something more intense. Understanding these two can help you figure out what’s right for you.

What Is HHC?

HHC, short for hexahydrocannabinol, is a hydrogenated version of THC. It’s not something you’d find naturally in large amounts in cannabis plants. Instead, it’s made through a process that adds hydrogen molecules to THC. The result? A more stable compound that’s less prone to breaking down when exposed to heat or UV light.

How HHC Is Made

Think of it like a science experiment. HHC is usually created in a lab by taking Delta 9 or Delta 8 THC and using hydrogenation—basically, combining it with hydrogen under pressure and in the presence of a catalyst. This process changes its structure while keeping its effects somewhat similar to THC.

Common Uses and Effects of HHC

People who use HHC say it’s somewhere between Delta 8 and Delta 9 in terms of effects. It’s often described as relaxing but without being overly sedative. You might feel a light buzz, reduced stress, or mild euphoria. Some even claim it helps with discomfort or improving sleep, but solid research is still catching up. Since it’s less potent than Delta 9, it’s often favored by those who want a manageable experience without the strong psychoactive punch.

If you’re interested in trying HHC and Delta 9 for yourself, check out their wide range of products at trycandycloud.com. They’ve got everything from gummies to disposable vapes, all crafted for a smooth experience.

What Is Delta 9 THC?

Delta 9 THC is the main psychoactive compound in cannabis. It’s the reason you feel “high” when you use weed. Chemically speaking, Delta 9 has a double bond in its ninth carbon chain, which plays a big role in how it interacts with your brain.

Natural Occurrence in Cannabis

This one is straightforward: Delta 9 is found in high concentrations in marijuana plants. It’s what most people think of when they hear “THC.” Unlike HHC, there’s no need for a lab process—it’s already there. Hemp plants, however, contain much lower levels of Delta 9 THC, which is why it’s primarily extracted from marijuana.

Common Uses and Effects of Delta 9 THC

The effects of Delta 9 are well-documented. Depending on the dose, you might feel euphoria, increased appetite, or deep relaxation. For medical users, it’s often used to manage chronic pain, nausea, and other conditions. It’s also been studied for its potential benefits in anxiety relief, though higher doses might have the opposite effect, causing paranoia. Delta 9 THC is versatile, but it’s not without its risks, particularly for new users or those sensitive to its psychoactive effects.

Key Differences Between HHC and Delta 9 THC

Chemical Structure and Composition

The main difference is in their structure. Delta 9 THC has that iconic double bond, while HHC’s hydrogenation makes it more stable. This difference might not mean much to the average person, but it’s why HHC is less likely to degrade over time.

Potency Levels

Delta 9 THC is generally more potent. HHC might require a higher dose to get a comparable effect, but some people prefer its lighter touch. Potency differences can also depend on the method of consumption, with edibles typically providing a stronger, longer-lasting effect compared to vaping or smoking.

Duration of Effects

Both last a few hours, but some users report that HHC’s effects fade more gradually. Delta 9, on the other hand, can have a sharper comedown. HHC’s gradual fade makes it appealing for those who want a smooth end to their experience.

Benefits and Drawbacks of HHC and Delta 9 THC

HHC: Pros and Cons

Pros:

  • More stable, so it lasts longer on the shelf.
  • Effects are milder, making it less overwhelming for beginners.
  • Can be a functional option for daytime use.

Cons:

  • Limited research, so we don’t know its full impact yet.
  • Availability can be hit or miss depending on where you live.
  • Legal gray area in many regions.

Delta 9 THC: Pros and Cons

Pros:

  • Well-studied with established medical uses.
  • Widely available in areas where cannabis is legal.
  • Stronger effects make it ideal for experienced users or those with high tolerance.

Cons:

  • Higher chance of side effects like anxiety.
  • More likely to show up on drug tests.
  • Shorter shelf life compared to HHC.

Frequently Asked Questions (FAQ)

Q. Is HHC safer than Delta 9 THC?

Not enough research exists to say definitively, but HHC’s milder effects might make it feel safer to some users.

Q. Will HHC or Delta 9 THC show up on a drug test?

Yes, both can potentially show up on a drug test, so use with caution if that’s a concern.

Q. Which one is better for recreational use?

That depends on your preferences. HHC is great for a mellow time, while Delta 9 is better if you’re looking for something more intense.

HHC vs. Delta 9: Choosing the Right One for You

The choice comes down to what you’re after. If you want a milder, more laid-back experience, HHC might be a good option. On the other hand, if you’re looking for something stronger or need it for medical reasons, Delta 9 is the way to go. It also depends on what’s legal and available where you are. And always consider your tolerance levels and experience before diving in. If you’re unsure, consult with a knowledgeable dispensary staff.

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What Federally Illegal Drug Has Created Almost $10 Billion in Sales Tax Revenue for States in the Last 40 Months?

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sales tax revenue with marijuana

In a significant development for the burgeoning cannabis industry, the U.S. Census Bureau has reported that states across the nation have collectively amassed over **$9.7 billion** in tax revenue from marijuana sales since mid-2021. This figure underscores the economic impact of legalized cannabis and highlights the growing acceptance of marijuana as both a recreational and medicinal substance in various states. As more states move toward legalization, the financial implications both positive and negative are becoming increasingly evident.

 

 The Landscape of Cannabis Legalization

 

The journey toward cannabis legalization in the United States has been long and complex. Initially criminalized in the early 20th century, cannabis began to regain acceptance in the late 20th century, particularly for medical use. The first state to legalize medical marijuana was California in 1996, setting a precedent that many states would follow.

 

By 2012, Colorado and Washington became the first states to legalize recreational cannabis, paving the way for a wave of legalization efforts across the country. As of now, more than 20 states have legalized recreational marijuana, while over 30 states allow medical use. This shift reflects changing public attitudes toward cannabis and recognition of its potential benefits.

 

Economic Implications of Legalization

 

The legalization of cannabis has not only transformed social norms but has also created a substantial economic impact. States that have embraced legalization have seen significant increases in tax revenue, job creation, and investment opportunities.

 

According to the latest Census Bureau report, states like California, Colorado, Illinois, and Michigan have emerged as leaders in cannabis tax revenue generation. These states have implemented various tax structures on marijuana sales, including excise taxes, sales taxes, and local taxes. The revenue generated is often earmarked for essential public services such as education, healthcare, infrastructure improvements, and drug rehabilitation programs.

 

Breakdown of Tax Revenue by State

 

 

As the largest legal cannabis market in the United States, California has been at the forefront of marijuana tax revenue generation. Since mid-2021, California has contributed approximately $2.5 billion to state coffers from cannabis taxes. This revenue is derived from both recreational and medical marijuana sales.

 

California’s tax structure includes a 15% excise tax on retail sales, along with local taxes that can vary significantly by city and county. The state has allocated a portion of these funds to various programs aimed at addressing issues related to drug abuse and public health.

 

 

Colorado was one of the pioneers in cannabis legalization and continues to serve as a model for other states. Since mid-2021, Colorado has generated around $1.8 billion in tax revenue from marijuana sales. The state imposes a 15% excise tax on wholesale marijuana transactions and a 2.9% sales tax on retail sales.

 

The revenue generated from cannabis taxes has been instrumental in funding education initiatives through the Public School Fund, as well as supporting mental health programs and substance abuse treatment services.

 

 

Illinois has seen remarkable growth in its cannabis market since legalizing recreational use in January 2020. In just two years, Illinois has collected approximately $1 billion in tax revenue from marijuana sales. The state imposes a tiered excise tax based on the potency of the product, ranging from 10% to 25%.

 

The funds collected are allocated to various initiatives, including community reinvestment programs aimed at addressing social equity issues related to past drug enforcement practices.

 

 

Michigan’s cannabis market has also flourished since legalization. Since mid-2021, Michigan has generated about $700 million in tax revenue from marijuana sales. The state’s tax structure includes a 10% excise tax on recreational marijuana and a 6% sales tax.

 

The revenue is utilized for various purposes, including education funding and support for local governments impacted by legalization.

 

Broader Economic Impact

 

 

The legalization of cannabis has led to significant job creation across various sectors. According to industry reports, the legal cannabis market supports hundreds of thousands of jobs nationwide—from cultivation and processing to retail and distribution. As more states legalize marijuana, this trend is expected to continue.

 

 

With the growth of the legal cannabis industry comes increased investment opportunities. Entrepreneurs are entering the market at an unprecedented rate, leading to innovations in product development, marketing strategies, and distribution channels. This influx of investment not only benefits individual businesses but also stimulates local economies.

 

Social Equity Considerations

 

While the financial benefits of cannabis legalization are clear, it is essential to address social equity issues that arise alongside this new industry. Many states have recognized that communities disproportionately affected by past drug enforcement policies should benefit from legalization efforts.

 

 

States like Illinois have implemented community reinvestment programs that allocate a portion of cannabis tax revenues to support communities impacted by previous drug laws. These funds can be used for education initiatives, job training programs, and mental health services—aiming to rectify historical injustices associated with cannabis prohibition.

 

 

In addition to financial support for communities affected by past policies, some states are also working to create equitable licensing opportunities for individuals from those communities. By prioritizing applications from minority-owned businesses or those directly impacted by previous drug laws, states can foster a more inclusive cannabis industry.

 

 Challenges Ahead

 

Despite the significant progress made through legalization efforts, challenges remain on both state and federal levels.

 

Federal Legalization Uncertainty

 

One major hurdle is the ongoing conflict between state and federal laws regarding cannabis. While many states have legalized marijuana for recreational or medical use, it remains classified as a Schedule I substance under federal law. This discrepancy creates complications for businesses operating legally at the state level but facing potential federal prosecution.

 

Efforts toward federal legalization or decriminalization have gained traction recently; however, progress remains slow due to political divisions and differing opinions on drug policy reform.

 

Regulatory Hurdles

 

As more states enter the legal cannabis market, regulatory frameworks must evolve to ensure consumer safety while promoting fair competition among businesses. States face challenges related to product testing standards, labeling requirements, advertising restrictions, and taxation policies that can impact market dynamics.

 

Conclusion

 

The U.S. Census Bureau reports that states have collected over $9.7 billion in marijuana tax revenue since mid-2021, highlighting the significant economic impact of cannabis legalization. As public acceptance grows, more states are likely to pursue legalization. Despite ongoing challenges, including federal regulations and social equity issues, legalized cannabis is poised to remain a vital part of state economies. Collaboration among government officials, business leaders, and community advocates will be essential for fostering an equitable and sustainable cannabis industry. This evolving landscape not only presents economic growth opportunities but also addresses historical injustices tied to drug policy enforcement, shaping the future of cannabis legislation in the U.S.

 

WHAT STATES HAVE THE HIGHEST WEED TAXES? READ ON…

MARIJUANA SALES TAX RATES

WHAT STATES HAVE THE HIGHEST MARIJUANA SALES TAXES?



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