Governor Signs Law Calling for Intoxicating Hemp Research, Future Rules

Weed gummies can come from very different sources nowadays, thanks to modified cannabinoids like Delta-8 THC.
Weed gummies can come from very different sources nowadays, thanks to modified cannabinoids like Delta-8 THC. Elsa Olofsson/CBD Oracle
Colorado's hemp and marijuana industries will soon have to hammer out rules for intoxicating hemp products and modified cannabinoids, two relatively new gray areas surrounding cannabis.

On May 31, Governor Jared Polis signed Senate Bill 205, which calls for establishing a twenty-member task force comprising hemp and marijuana industry representatives, as well as government and consumer representatives. The members will be selected by the Colorado Marijuana Enforcement Division, with input from the state departments of Agriculture and Public Health and Environment. Under the new law, the task force will study products made with converted forms of THC, the main intoxicating compound in cannabis, as well as other cannabinoids, then make legislative and regulatory recommendations by next January.

The new law also gives the state the authority to restrict and prohibit the sale of modified or synthetic forms of THC in the future.

Hemp and marijuana are both cannabis plants, but they differ in one key way: THC. If a hemp plant's flowers or a final hemp product tests above 0.3 percent THC, it is considered marijuana by the federal government and must be destroyed or remediated. A variety of hemp plants have been selectively bred to produce low amounts of THC and high amounts of CBD, a non-intoxicating cannabinoid with medical benefits. However, CBD can be modified into different isomers of THC, including forms that aren't explicitly banned by the federal government.

When the Controlled Substances Act was passed in 1970, Delta-9 THC was the only natural THC isomer found in any discernible amount in cannabis. Since the CSA passed, other THC isomers such as Delta-8 and Delta-10 THC have been discovered; they have similar effects to Delta-9 THC when smoked, vaporized or ingested. After Congress legalized hemp farming in 2018 through the Farm Bill, laboratories began converting hemp-derived cannabinoids like CBD into THC isomers that aren't mentioned in the CSA. Some hemp companies are even bolder, selling Delta-9 THC edibles under the argument that the products are less than 0.3 percent THC by weight, and so under the federal limit.

Modified hemp cannabinoids have created a burgeoning market for gummies and vaporizers that can provide intoxicating effects similar to those of marijuana products sold at dispensaries. These hemp products are offered online and at more traditional retailers, such as gas stations or smoke shops. Colorado bans the sale of modified hemp cannabinoids in dispensaries, but doesn't have any other prohibitions in place.

Although the United States Food and Drug Administration has issued warnings and statements of concern about intoxicating hemp products, the FDA hasn't made any attempts to ban them, nor has the Drug Enforcement Administration. Last week, the 9th Circuit Court of Appeals acknowledged the Farm Bill's loophole and ruled that modified forms of THC, not including Delta-9, weren't federally prohibited.

That loophole has been a cash cow for some hemp businesses, but public health officials and the marijuana industry have been calling for tighter restrictions on modified cannabinoids, which could come as soon as next year in Colorado.

Largely collaborative on most fronts, the hemp and marijuana industries haven't seen eye to eye on how strict hemp-derived cannabinoid regulations should be. Factions of the hemp industry advocate allowing intoxicating hemp products to be sold both inside and outside of the dispensary space, while the marijuana industry — bound by a much more extensive set of rules than hemp because of federal prohibition — wants similar rules or outright bans for modified cannabinoids. Colorado's new task force will be responsible for finding compromises.

“As a Colorado mother and cannabis business owner, I know how important it is to ensure intoxicating products are regulated in order to prevent youth access. This legislation is a critical step toward sensible regulation of hemp intoxicants and will help keep our communities healthy and safe," Tiffany Goldman, board chair of the Marijuana Industry Group and co-owner of the Health Center dispensary chain, says in a statement regarding the bill.

Colorado Hemp Industry Association Vice President Sam Walsh has some reservations on marketplace restrictions for modified cannabinoids, and says he would have liked to see more hemp-industry voices on the task force. But as a whole, he adds, hemp businesses are "pleased with this bill. We've been asking for a year now for the department to engage in a stakeholder process that we can bring in. We'd like science-based data in the discussion so we can figure it out together as an industry and state that leads in cannabis policy."

After the Court of Appeals issued its ruling last month, Walsh says, hemp businesses will continue to push for regulations instead of outright bans on modified cannabinoids and intoxicating hemp products.

"We're certainly looking forward to creating standards and regulations around cannabinoid conversion," she adds. "Our goal is: How do we keep the hemp industry in Colorado intact? How do we keep the hemp supply chain in Colorado strong?"

The MED will be accepting applications for membership on the task force through June 15; the first public meeting is scheduled for July 13.

Find the summary of the final bill here
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Thomas Mitchell has written about all things cannabis for Westword since 2014, covering sports, real estate and general news along the way for publications such as the Arizona Republic, Inman and Fox Sports. He's currently the cannabis editor for westword.com.
Contact: Thomas Mitchell