Mass. faces a regulatory challenge with Hemp-based 'gas station weed'
Massachusetts Lawmakers Address Regulatory Gaps in Intoxicating Hemp Products.
The gummies, energy shot-like drink bottles and seltzers have proliferated across Massachusetts convenience store checkout counters and social media feeds. They look awfully similar to products you'd find at a regulated cannabis shop and sometimes suggest they offer the same effects.
State lawmakers dug into what local health officials described Tuesday morning as an "untenable" state of play: As these intoxicating hemp-based products get a foothold in the market and become more mainstream, they appear to fall into a gray area of the law and between the regulatory cracks. And with the negative health impacts of those products on the rise, committee chairs made clear Tuesday that they think the issue will require legislative intervention this session or next.
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"My goodness. We have a situation where intoxicating hemp products are being produced, probably from hemp that isn't grown in Massachusetts, in labs that have no supervision, being put into packages that have no age requirements, and they're competing with our lawful cannabis retailers. This is a heck of a situation," Rep. Paul Schmid, co-chair of the Agriculture Committee, said at the end of his committee's joint convening with the Committee on Cannabis Policy.
Hemp is primarily under the jurisdiction of the Department of Agricultural Resources, though some hemp products are available for sale at marijuana businesses licensed by the Cannabis Control Commission. But hemp-based products have been popping up at places licensed by the Alcoholic Beverages Control Commission like liquor stores, bars and restaurants, and retailers overseen by local boards of health like tobacco and vape shops. And the state Department of Public Health has gotten involved since it regulates food and drinks.
The ABCC and DPH issued an advisory on May 29 stating "it is unlawful to manufacture and/or sell food or beverages containing hemp derived CBD and/or THC" and ordering that the "products must be taken off the shelf immediately."
Health inspectors told the committees Tuesday that this type of hemp-based product has been around for about six years, but has become more mainstream recently. They are labeled as things like "Delta-8," "Delta-10" or "THC In A Bottle," and often come in bright packaging sometimes meant to mimic the look of legal products, like Skittles.
"These products right now are illegal. And it's a crime to sell them because they're controlled substances. Now, that obviously hasn't stopped the industry from making these products and distributing these products," Cheryl Sbarra, executive director and senior staff attorney for the Massachusetts Association of Health Boards, said. She added, "So my membership's perspective is that these products are dangerous, these products are illegal, and the current situation is untenable."
Sbarra said the ABCC/DPH guidance is helpful, but it does not cover all locations where hemp-based products are being sold. She said stores that sell shelf-stable food — "think Twinkies and Coke," she said — are not required to have a food service permit, which means local boards of health have fewer options for taking action against a business that continues to sell the products.
Public Health Commissioner Robbie Goldstein told lawmakers Tuesday that while DPH doesn't know every product that's on every shelf in the more than 20,000 food establishments in Massachusetts, there is federal data "telling us about the dangers of these products."
"We're seeing increasing numbers of those, especially youth and adolescents that are experiencing hospital admissions, ICU admission, significant morbidity, because of intoxication from these products. And we know here in Massachusetts — we started collecting some data about this since 2021 — and we're starting to see some hospitalizations just here in Massachusetts, we're seeing some data from the National Poison Center about a rise in exposures to synthetic cannabis products," he said. "So while we can't quantify for you the exact number of products on the shelves, we can tell you that the impact of those products is increasing in Massachusetts."
'What is perceived to be a loophole'
The 2018 federal farm bill removed hemp from the Controlled Substances Act and gave oversight of hemp production to federal and state departments of agriculture.
Hemp is defined as cannabis that contains no more than 0.3% Delta-9 tetrahydrocannabinol (THC), the primary psychoactive compound of marijuana, at the time of harvest. Mass. Department of Agriculture Resources (MDAR) Commissioner Ashley Randle explained that the distinction between hemp and marijuana is a legal one: "Cannabis that is not certified as hemp at the time of harvest by the appropriate federal, state or tribal authority is considered marijuana, and remains a schedule one controlled substance."
But that doesn't mean that everything derived from hemp is exempt from being a controlled substance or is lawfully allowed to be included as an ingredient in products like foods, beverages, cosmetics and more. And there are dozens more cannabinoids aside from the state-regulated Delta-9 THC that are present in marijuana and can be derived from hemp, including Delta-8 THC and Delta-10 THC.
"With that said, not everything is clearly under the definition of marijuana either, creating confusion and uncertainty as to who should be responsible for the oversight of cannabinoid products," Randle told the committees.
And Randle reminded lawmakers that a hemp crop is tested to be certified as hemp at the time of harvest and that the threshold of 0.3% Delta-9 THC by weight is a small amount in a plant, but "can equate to hundreds of milligrams of THC" in a processed final product.
"There is no further regulatory testing required, and anything made with certified hemp is deemed to be hemp-derived going forward. This is an important legal distinction as it gives many hemp-derived products legal cover from being considered marijuana under [law] regardless of any future THC or other cannabinoid levels," the commissioner said. "While MDAR has primary jurisdiction over the licensing of hemp-related activities, hemp-derived products and their sale do not solely fall under MDAR's jurisdiction."
Sbarra said product manufacturers "expanded" the definition to claim that any product that has a Delta-9 THC concentration of less than 0.3% "is by definition hemp," leading to "what is perceived to be a loophole."
"Even if that product with less than 0.3% of Delta-9 is intoxicating, is created in a lab with using unknown components and solvents, a lab that has no certification process for testing contaminants, no labeling requirements, no age restriction — doesn't matter. If it has less than 0.3% Delta-9, the industry says it's legal," she said, contending that state and federal law make clear that "all synthetically-derived THC products are still schedule one controlled substances."
'Needs to be ... legislatively handled'
Testimony at Tuesday's hearing was by invitation only and also included CCC Commissioner Kimberly Roy, who previously used the phrase "gas station weed" to describe unregulated products that market themselves to appear as regulated cannabis products. She said the CCC has heard a lot from its licensees about hemp products.
"Licensees who have in some cases spent a large portion of their personal savings and devoted their professional lives to building a compliant, regulated business are faced with the demoralizing sight of intoxicating cannabinoid products being sold down the street with no regulation, no testing and no protection for children," she said. "We understand the difficult situation all state and local agencies find themselves in due to the nature of the federal status of hemp and cannabis. The commission is committed to working with our partners across government and in the legislature to adequately protect public health and safety and face this policy challenge head on."
After nearly two hours of testimony Tuesday, some of the lawmakers who participated in the hearing said they, too, were prepared to tackle the issue.
"I think that this is something that needs to be obviously legislatively handled. I know that we are at the tail end of our legislative season, but I think this is something we need to bring back of great importance and try to figure out a solution as best as possible that works for both of our branches," Sen. Adam Gomez, co-chair of the Cannabis Policy Committee said. "So just want to say I'm looking forward to working on this and working with all of you to make sure we find solutions to the industry and also to public health, that they need the resources as well."
Schmid, co-chair of the Agriculture Committee, said he agreed with Gomez.
"We have a situation now that is hurting our cannabis retailers, our cannabis industry and our farmers. And I hope that in the next session, we can do something about it," the retiring Westport representative said.
