Petitions seek to remove Vermont's THC caps

Petitions seek to remove Vermont's THC caps

Recreational cannabis has been legal for retail sale in Vermont for almost a year, but the work to finetune many of the regulations around the new industry continue.

One of the restrictions that consumers and businesses alike are still challenging are THC caps.

Geoffrey Pizzutillo, executive director of the Vermont Growers Association, called the issue "a sharp thorn in the side of the Vermont cannabis industry."

"Licensees and customers alike are eager to remove the caps from flower and concentrates," he said. 

THC, or delta-9-tetrahydrocannabinol, is the primary psychoactive cannabinoid extracted from the cannabis plant.

Bernie Silva, policy director at VGA, has been spearheading a multi-yearlong campaign to end the ban on high-THC products. He's a licensed manufacturer and cultivator. 

Flower is capped for THC at 30 percent for flower and 60 percent for manufactured concentrates. Flower is allowed to go over the cap by 20 percent, so up to 36 percent, whereas manufactured concentrates can only go over by 10 percent for a total of 66 percent, before going to market. No cap exists for vaporized products. 

A petition from the VGA with more than 246 signatures from within the industry calls for the Vermont Legislature to remove the THC caps in Act 164 of 2020, stating that the caps "push away businesses and consumers" from the state's marketplace. 

"Concentrates and concentrate-based products account for upwards of 50 percent of an adult-use marketplace in most legal states," the petition reads. "Vermont is expected to generate over $100 million in total sales from its adult-use marketplace. If the THC caps remain, a significant representation of Vermont's emerging market will succumb to onerous regulations our neighboring states won't have."

The petition describes the caps as "arbitrary" and having "no legislative or science-based precedent." Businesses say the caps "will have a profound impact on the safety, cleanliness, and general availability of concentrates and concentrate-based products for consumers in the Vermont adult-use marketplace and encourage local businesses to stay in the illicit market."

A consumer petition from the VGA with more than 684 signatures calls for an end to the caps as well.

"I want legal access to safe, clean, unadulterated cannabis flower, concentrates, and the many concentrate-based products consumers enjoy in an adult-use marketplace, such as edibles, tinctures, salves, topicals, and more," the petition states. 

Vermont and Connecticut are the only two states in the U.S. with THC caps. In the beginning days of Vermont's recreational marketplace, cultivators wanted to get started, even if they had to live with the THC cap. 

"But I think over this last year and coming up, cultivators are realizing how hamstrung they are in terms of what they do with their products beyond flower," Silva said, blaming the caps for "this really highly inflated value for flower and preventing manufacturing from taking off."

Silva noted people are afraid to send product to a third party processor — if THC levels are too high they might have to take an extra step to bring them down and incur additional expenses. He said Tier 2, which offers the most accessible licensing fees for cultivators in Vermont, would have "a lot more runway to create products" if they need not worry about THC caps. 

Two years ago, a bill that included removing the 60 percent cap passed unanimously in the Senate then the provision died in the House of Representatives. Last year, a bill on eliminating the cap had one hearing. 

"Generally the consensus was the Vermont Medical Society has been lobbying the Department of Health and the governor into preventing the caps from being removed," he said. 

A spokesperson for Gov. Phil Scott didn't immediately respond to a request for comment on the governor's perspective on the issue. 

With the second year of the new biennium coming up, the VGA aims to make the issue front and center. 

"It's going to be all hands on deck," Silva said. "This affects every level of the industry because it gives cultivators so many more options in getting rid of what they're selling. It's basically byproduct now." 

Silva said trim from pot has desirable material that can be used to create oils but it's currently being treated as waste. 

"Some companies are savvier than others and work around it," he said. "But the reality is that limitation still exists."

Silva said he appreciates the Cannabis Control Board's "understanding of the economics behind this." 

"They get how much work it's causing them to monitor these things when it's something that should be out of their control," he said. "I think the CCB has done a great job of walking back some of the corporate-style restrictions that were in the original bill."

CCB Chairman James Pepper said the board has been asked to write multiple reports about whether the cap should remain or be lifted. Where the VGA focuses on economics and access to products, he said, the board is concerned with public safety and consumer safety.

"We always come at things from: it is better to have a regulated product than an unregulated product," he said.

A prohibition on high concentrates doesn't eliminate the demand for them, Pepper said. He pointed out products not available in retail stores can be purchased online and have the potential for being dangerous. 

To achieve a 60 percent cap with concentrates, Pepper noted the easiest way to remove all biomass involves putting in less pure adulterants and fillers. 

"We don't know the effects of smoking this stuff," he said. "Trying to explain this and trying to move away from the fear of this is tough. The medical society has rally drawn a line in the sand that they don't want to see high solid concentrates in this market and their opinion carries a lot of weight." 

The Vermont Medical Society has shared reports with the board that chronic cannabis use can be correlated with suicide ideation and schizophrenia. Pepper said it's difficult to draw anything but correlations because cannabis can't be researched the way other pharmaceuticals can. 

A different advertising structure for the high solid concentrates or having them kept behind the counter at stores are potential projects. 

"That's where we're trying to find some common ground and trying to address some of the concerns being raised," Pepper said. "It has not gotten any political traction. I know this is a hot-button issue."

Pepper said the board would rely on the Department of Health to help write warnings or create another flyer given out specifically to customers after a sale of high solid concentrates, as the department has written the point-of-sale flyer handed out now. 

"I just don't see it happening any time soon unfortunately," he said. 

Hope Aguilera, co-owner of Low Key Alchemy, described this year being one of learning for the state as it rolled out its retail marketplace. She said she hopes Vermont can figure out the THC cap issue. 

Low Key Alchemy, a Tier 2 manufacturer based in Barre, creates cannabis hash and hash rosin extracts using an ice water extraction process. The company operates a processing facility, partnering with organic and local small farms. 

"We're very grassroots," Aguilera said. "We're owned by two mixed race couples. It's just us. We don't have any big investor." 

Hash happens to fall right at the 60 percent THC mark so it feels like the cap "targets solventless," Aguilera said. She doesn't understand why vaporized products aren't capped. 

If the concern is about safety, Aguilera said, vape cartridges are much more accessible. To dab hash, a glass rig and torch or expensive heating apparatus is needed. 

Finding good rosin or hash in retail stores is more difficult in Vermont. 

"There's only like two of us on the shelf," Aguilera said. "At any given time, it can be really hard to find."

Aguilera noted testing can get expensive when products require multiple tests before they go to market. That cost gets handed down to consumers along with others such as banking and insurance, which is difficult to obtain in the cannabis industry. 

Aguilera doesn't want to see the industry ruled by big corporations. 

"I think we in Vermont should really focus on craft, on small batch, on sustainable practices," she said. "The THC cap, all it does is hurt small businesses that can't spend as much money on endless testing, on endless material."

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Region: Vermont

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