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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 The case is not precedential anywhere outside of the Ninth Circuit.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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Latest Trump Weed Rumor – Trump Will Federally Deschedule and Decriminalize Cannabis, but Not Legalize It

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trump on marijuana reform

In a recent interview, former New Jersey Governor Chris Christie made headlines by asserting that President-elect Donald Trump will pursue significant reforms in federal policies regarding marijuana and cryptocurrency. As the nation grapples with evolving attitudes toward cannabis and the burgeoning digital currency market, Christie’s predictions have ignited discussions about the potential implications of such changes on both industries. This article delves into Christie’s insights, the current state of marijuana and cryptocurrency regulations, and the broader implications of these anticipated reforms.

 

The Current Landscape of Marijuana Legislation

 

Federal vs. State Laws

Marijuana remains classified as a Schedule I substance under the Controlled Substances Act (CSA), which places it in the same category as heroin and LSD. This classification has created a complex legal landscape where states have moved to legalize cannabis for medical and recreational use, while federal law continues to impose strict prohibitions. As of now, over 30 states have legalized marijuana in some form, leading to a burgeoning industry that generates billions in revenue.

 

Challenges Faced by the Cannabis Industry

 

Despite its legality in many states, the cannabis industry faces significant hurdles due to federal restrictions. These challenges include:

  • Banking Access: Many banks are hesitant to work with cannabis businesses due to fear of federal repercussions, forcing these businesses to operate largely in cash.

  • Taxation Issues: The IRS enforces Section 280E of the tax code, which prohibits businesses engaged in illegal activities from deducting normal business expenses, leading to disproportionately high tax burdens for cannabis companies.

  • Interstate Commerce: The lack of federal legalization prevents cannabis businesses from operating across state lines, limiting their growth potential.

 

Chris Christie’s Perspective on Marijuana Reform

 

Christie, a former presidential candidate known for his tough stance on drugs during his tenure as governor, has evolved his views on marijuana over the years. In his recent statements, he emphasized that Trump is likely to pursue descheduling cannabis, which would remove it from the Schedule I classification. This move would not only provide clarity for businesses operating in legal markets but also open avenues for banking and investment.

 

Christie highlighted that descheduling would allow for a more regulated market where safety standards could be established, thus protecting consumers. He believes that this approach aligns with a growing consensus among Americans who support legalization and recognize the potential benefits of cannabis use for both medical and recreational purposes.

 

The Future of Cryptocurrency Regulation = The Rise of Cryptocurrencies

 

Cryptocurrencies have surged in popularity over the past decade, with Bitcoin leading the charge as the first decentralized digital currency. The market has expanded to include thousands of alternative coins (altcoins), each with unique features and use cases. As cryptocurrencies gain traction among investors and consumers alike, regulatory scrutiny has intensified.

 

Current Regulatory Challenges

 

The cryptocurrency market faces several regulatory challenges that hinder its growth and adoption:

 

  • Lack of Clarity: Regulatory frameworks vary significantly across states and countries, creating confusion for investors and businesses.

  • Fraud and Scams: The rapid growth of cryptocurrencies has led to an increase in fraudulent schemes targeting unsuspecting investors.

  • Consumer Protection: Without clear regulations, consumers are often left vulnerable to risks associated with volatile markets.

 

Christie’s Vision for Crypto Regulation

 

Christie believes that under Trump’s leadership, there will be an effort to find a “sweet spot” for cryptocurrency regulation balancing innovation with consumer protection. He argues that overly stringent regulations could stifle growth in this emerging sector while too little oversight could expose consumers to significant risks.

 

In his view, a balanced regulatory framework would include:

 

1. Clear Definitions: Establishing clear definitions for different types of cryptocurrencies and tokens to differentiate between securities and utility tokens.

2. Consumer Protections: Implementing measures to protect investors from fraud while promoting transparency within the market.

3. Encouraging Innovation: Creating an environment conducive to innovation by allowing startups to thrive without excessive regulatory burdens.

 

Christie’s insights reflect a growing recognition among policymakers that cryptocurrencies are here to stay and that appropriate regulations are necessary to foster growth while safeguarding consumers.

 

Implications of Proposed Reforms

 

Economic Impact

 

The potential reforms proposed by Christie could have far-reaching economic implications:

 

  • Job Creation: Legalizing marijuana at the federal level could lead to significant job creation within the cannabis industry—from cultivation and production to retail sales.

  • Investment Opportunities: Descheduling cannabis would open up investment opportunities for institutional investors who have been hesitant due to federal restrictions.

  • Boosting Local Economies: Legal cannabis markets have proven beneficial for local economies through increased tax revenues and job creation.

 

Similarly, clear regulations around cryptocurrencies could stimulate investment in blockchain technology and related industries, fostering innovation and economic growth.

 

Social Justice Considerations

 

Both marijuana legalization and sensible cryptocurrency regulations have social justice implications:

 

  • Addressing Past Injustices: Legalizing marijuana could help rectify past injustices related to drug enforcement policies that disproportionately affected marginalized communities.

  • Financial Inclusion: Cryptocurrencies offer opportunities for financial inclusion for those underserved by traditional banking systems, particularly in low-income communities.

 

Political Landscape

 

The political landscape surrounding these issues is complex. While there is bipartisan support for marijuana reform among certain lawmakers, challenges remain in overcoming entrenched opposition. Similarly, cryptocurrency regulation has garnered attention from both sides of the aisle but requires collaboration to establish effective frameworks.

 

Conclusion

 

Chris Christie’s predictions about President-elect Donald Trump’s approach to federal marijuana descheduling and cryptocurrency regulation suggest a potential shift in U.S. policy that could significantly reshape both industries. As public opinion evolves on these issues, lawmakers have an opportunity to enact meaningful reforms that promote economic growth while ensuring consumer protection. The anticipated changes could foster a more robust cannabis industry that contributes positively to the economy and addresses social justice concerns, while clear regulatory frameworks for cryptocurrencies could encourage innovation and protect consumers in the digital economy. Stakeholders in both sectors are closely watching these developments, eager to see how potential reforms might impact their futures. While the realization of Christie’s predictions remains uncertain, it’s clear that the conversation around marijuana and cryptocurrency regulation is ongoing and far from settled.

 

TRUMP 2.0 ON CANNABIS REFORM, READ ON…

TRUMP ON MARIJUANA REFORM

TRUMP 2.0 ON FEDERAL CANNABIS REFORM – WHAT DO WE KNOW?

 



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Webinar Replay: Post-Election Cannabis Wrap – Smoke ’em if You’ve Got ’em

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On Thursday, November 7th, Vince Sliwoski, Aaron Pelley and Fred Rocafort held a post election discussion “Post-Election Cannabis Wrap – Smoke ’em if You’ve Got ’em”. Watch the replay!

Key Takeaways from the “Smoke ’em if You’ve Got ’em – 2024 Post Election Cannabis Wrap” Webinar:

  1. Panelists:
    • Vince Sliwoski: Oregon Business lawyer specializing in cannabis and commercial real estate.
    • Aaron Pelley: Experienced in cannabis law since Washington’s legalization in 2012.
    • Fred Rocafort: Trademark attorney working closely with the cannabis team.
  2. Election Results Overview:
    • Most 2024 cannabis ballot measures did not pass.
    • Florida, South Dakota, and North Dakota saw failures.
    • Nebraska became the 39th state to legalize cannabis for medical use when it passed two cannabis initiatives, Initiatives 437 and 438.
  3. Federal and State-Level Developments:
    • Medical use is currently legal in 38 states, and 24 states allow recreational use.
    • Republican support for marijuana legalization is growing.
  4. Federal Policy Implications:
    • Schedule III Rescheduling: The process to move cannabis to Schedule III is ongoing, which could significantly impact the industry.
    • Importance of Federal Appointments: The future of cannabis policy depends heavily on who is appointed to key positions in the administration.
  5. International and Domestic Trade:
    • Schedule III status could ease import/export restrictions on cannabis.
    • Unified control of House, Senate, and presidency might expedite legislative progress.
  6. Economic and Industry Impact:
    • Cannabis stocks experienced volatility post-election, reflecting investor uncertainty.
    • Federal legalization and banking reforms are crucial for industry stability and growth.
  7. Future Outlook:
    • The potential for federal rescheduling remains strong, with hearings scheduled for early 2025.
    • State-level initiatives and regulatory developments will continue to shape the industry.

Watch the replay!



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I Had Just One Puff

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one puff of a joint a drug test

“How Long Does One Puff of Weed Stay in Your System?”… This topic can be difficult to answer since it is dependent on elements such as the size of the hit and what constitutes a “one hit.” If you take a large bong pull then cough, it might linger in your system for 5-7 days. A moderate dose from a joint can last 3-5 days, whereas a few hits from a vaporizer may last 1-3 days.

 

The length of time that marijuana stays in the body varies based on a number of factors, including metabolism, THC levels, frequency of use, and hydration.

 

Delta-9-tetrahydrocannabinol, or THC, is the primary psychoactive component of cannabis. THC and its metabolites, which remain in your body long after the effects have subsided, are detected by drug tests.

 

Since these metabolites are fat-soluble, they cling to bodily fat molecules. They could thus take a while to fully pass through your system, particularly if your body fat percentage is higher.

 

THC is absorbed by tissues and organs (including the brain, heart, and fat) and converted by the liver into chemicals such as 11-hydroxy-THC and carboxy-THC. Cannabis is eliminated in feces at a rate of around 65%, while urine accounts for 20%. The leftover amount might be kept within the body.

 

THC deposited in bodily tissues ultimately re-enters the circulation and is processed by the liver. For frequent users, THC accumulates in fatty tissues quicker than it can be removed, thus it may be detectable in drug tests for days or weeks following consumption.

 

The detection time varies according to the amount and frequency of cannabis usage. Higher dosages and regular usage result in longer detection times.

 

The type of drug test also affects detection windows. Blood and saliva tests typically detect cannabis metabolites for shorter periods, while urine and hair samples can reveal use for weeks or even months. In some cases, hair tests have detected cannabis use over 90 days after consumption.

 

Detection Windows for Various Cannabis Drug Tests

 

Urine Tests

Among all drug tests, urine testing is the most commonly used method for screening for drug use in an individual.

 

Detection times vary, but a 2017 review suggests the following windows for cannabis in urine after last use:

 

– Single-use (e.g., one joint): up to 3 days

– Moderate use (around 4 times a week): 5–7 days

– Chronic use (daily): 10–15 days

– Chronic heavy use (multiple times daily): over 30 days

 

Blood Tests

Blood tests generally detect recent cannabis use, typically within 2–12 hours after consumption. However, in cases of heavy use, cannabis has been detected up to 30 days later. Chronic heavy use can extend the detection period in the bloodstream.

 

Saliva Tests

THC can enter saliva through secondhand cannabis smoke, but THC metabolites are only present if you’ve personally smoked or ingested cannabis.

 

Saliva testing has a short detection window and can sometimes identify cannabis use on the same day. A 2020 review found that THC was detectable in the saliva of frequent users for up to 72 hours after use, and it may remain in saliva longer than in blood following recent use.

 

In areas where cannabis is illegal, saliva testing is often used for roadside screenings.

 

Hair Tests

Hair follicle tests can detect cannabis use for up to 90 days. After use, cannabinoids reach the hair follicles through small blood vessels and from sebum and sweat surrounding the hair.

 

Hair grows at approximately 0.5 inches per month, so a 1.5-inch segment of hair close to the scalp can reveal cannabis use over the past three months.

 

Factors Affecting THC and Metabolite Retention

 

The length of time THC and its metabolites stay in your system depends on various factors. Some, like body mass index (BMI) and metabolic rate, relate to individual body processing, not the drug itself.

 

Other factors are specific to cannabis use, including:

 

– Dosage: How much you consume

– Frequency: How often you use cannabis

– Method of consumption: Smoking, dabbing, edibles, or sublingual

– THC potency: Higher potency can extend detection time

 

Higher doses and more frequent use generally extend THC retention. Cannabis consumed orally may remain in the system slightly longer than smoked cannabis, and stronger cannabis strains, higher in THC, may also stay detectable for a longer period.

 

How Quickly Do the Effects of Cannabis Set In?

 

When smoking cannabis, effects appear almost immediately, while ingested cannabis may take 1–3 hours to peak.

 

The psychoactive component THC produces a “high” with common effects such as:

 

– Altered senses, including perception of time

– Mood changes

– Difficulty with thinking and problem-solving

– Impaired memory

 

Other short-term effects can include:

– Anxiety and confusion

– Decreased coordination

– Dry mouth and eyes

– Nausea or lightheadedness

– Trouble focusing

– Increased appetite

– Rapid heart rate

– Restlessness and sleepiness

 

In rare cases, high doses may lead to hallucinations, delusions, or acute psychosis.

 

Regular cannabis use may have additional mental and physical effects. While research is ongoing, cannabis use may increase the risk of:

 

– Cognitive issues like memory loss

– Cardiovascular problems including heart disease and stroke

– Respiratory illnesses such as bronchitis or lung infections

– Mood disorders like depression and anxiety

 

Cannabis use during pregnancy can negatively impact fetal growth and development.

 

Duration of Effects

Short-term effects generally taper off within 1–3 hours, but for chronic users, some long-term effects may last days, weeks, or even months. Certain effects may even be permanent.

 

Bottom Line

The amount of time that cannabis remains in your system following a single use varies greatly depending on individual characteristics such as body fat, metabolism, frequency of use, and mode of intake. Frequent users may maintain traces of THC for weeks, whereas infrequent users may test positive for as little as a few days. Hair tests can disclose usage for up to 90 days, while blood and saliva tests identify more recent use. Urine tests are the most popular and have varying detection durations. The duration that THC and its metabolites are detectable will ultimately depend on a number of factors, including dose, strength, and individual body chemistry.

 

PEE IN A CUP COMING UP, READ ON..

how long does weed stay in your urine

HOW LONG DOES WEED STAY IN YOUR URINE FOR A DRUG TEST?



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