Hemp-derived Cannabinoids Create Controversy in Washington State

In the plant world, hemp is cannabis and cannabis is hemp—a simple and straightforward situation, until humans (and money) become involved. Then, hemp becomes an existential threat to cannabis. Since the 2018 Farm Bill legalized the production of “hemp”—a term legally defined as cannabis sativa with 0.3% or less THC; anything with more is “marijuana” under federal law—the U.S. hemp industry has been on a near non-stop rollercoaster of boom and bust. After the great CBD crash, the latest boom cycle is powered by intoxicating products made with hemp-derived cannabinoids: Delta-8 THC, hemp-derived Delta-9 THC and a few others, such as THC-O. 

While the quality and potency can be erratic, these products “work”—that is, they get you high. And since they’re almost all unregulated, they’re much more widely available than tightly controlled adult-use cannabis. You can find products like this online and at convenience stores, and often at a lower price and without age restrictions.

This is great for U.S. hemp farmers, who finally have a reliable market for their products. This isn’t great for the U.S. adult-use cannabis industry, who have yet another off-market competitor. 

Cannabis vs Hemp: Battle Over Hemp-Derived Cannabinoids

A threatened cannabis industry lashing out against hemp producers is one way to understand what’s going on in Washington, where lawmakers and the state Liquor and Cannabis Board are pushing to regulate any “impairing cannabinoid product,” a definition that would capture vapes, gummies and other products made with hemp-derived Delta-9 THC as well as Delta-8 THC. (If you extract enough 0.3% THC hemp, it’s possible to obtain enough THC to catch a buzz.)  

In this view, Senate Bill 5547, introduced by state Sen. Karen Keiser, is the cannabis industry pushing to extend the ban imposed last year on hemp-derived Delta-8 THC products to anything made from hemp that a consumer might consider over an adult-use cannabis product.

Another way to understand the bill is simple consumer protection. SB 5547 extends to state regulators the same authority they have over cannabis-derived Delta-9 THC to hemp-derived Delta-9, giving the state Liquor and Cannabis Board oversight power of any product that exceeds “0.3 percent THC on a dry weight basis” that also has more than 0.5 milligrams per serving or 2 milligrams per package. 

The bill would also spell the permanent end of the Delta-8 THC era in Washington state. If SB 5547 is passed and becomes law, Delta-8 THC products would by default have to be sold in LCB-licensed stores—and the whole point of Delta-8 THC, which is derived from CBD through a chemical process, is to get around state adult-use cannabis laws and federal marijuana prohibition by using the Farm Bill.

Conflicting Industry and Consumer Interests

“Washington state has a well-designed regulatory framework for cannabis that has successfully protected consumers, encouraged a flourishing cannabis sector in our economy, and established public trust,” Keiser said in an e-mailed statement provided to Cannabis Now. “Everything we have seen over the past decade indicates that this system has proven to work well. But now, I am concerned that the proliferation of unregulated cannabinoids outside of the regulatory system could damage that public trust and potentially present a danger to consumers.”

That’s the same line heard from some cannabis researchers and scientists, who express concern over the still poorly understood chemical byproducts that can be found in Delta-8 THC products, the end result of the aforementioned chemical synthesis process. These chemicals have no known safety profile, meaning we don’t know what they are or what they do. 

For all these reasons, bill supporters include advocates for craft cannabis in Washington state as well as state regulators and industry representatives. Arrayed against them are their erstwhile friends in the hemp industry, which of course hates this. 

For hemp, this is about protection—but for industry, not consumers. 

“It’s coming from an existing recreational industry that feels threatened by what the hemp-derived cannabinoid industry is doing,” said Lukas Gilkey, the founder of Hometown Hero, a Texas-based company that manufactures and markets hemp-based Delta-9 THC products as well as gummies, vaporizers and other products containing CBD, and Delta-8 THC. 

“It’s kind of disheartening to see: an industry that’s been so punished by prohibition, to see them take a prohibitionist stance,” Gilkey said. 

And there’s the central issue. Federal marijuana law—which can also be called federal cannabis prohibition—is the man-made construct that created the artificial and arbitrary dividing line between hemp and cannabis. If cannabis with more than 0.3% was decriminalized, there would likely not be a market for processed hemp products that act in the same way as cannabis in the first place. Until that wall falls, there will be internal squabbles like the debate in Washington—which will likely be repeated in other states.