Signed into law in March, cannabis legalization is still very new in New York State. Possession is legal, but dispensaries may not open until summer of 2022. Before that can happen, state Rep. Mike Lawler, an upstate Republican, wants to create exceptions to legalization and restrict what products are available.
Claiming that “[f]requent consumption of high-potency cannabis can result in serious health conditions, including neurotoxicity and substance use disorders,” in June, Lawler introduced a bill that, if passed, would ban cannabis flower with more than 15 percent THC. It would also ban edibles and concentrates with more than 60 percent THC.
If Lawler has his way, most of the products found in dispensaries in Colorado, California and elsewhere would be illegal in New York. And this is a trend. Even as Congress and states across the South consider legalizing marijuana — following the lead of Virginia, which legalized as of July 1 — lawmakers in other states are making similar pushes to restrict high THC products.
Demonizing THC appears to be the latest effort from reliably anti-legalization organizations and activists — who, so far, have failed to thwart marijuana legalization’s strong popularity among voters or slow down legalization’s political momentum. With both New York, the country’s most populous and most-visited city, and Virginia, the first state in the south, legalizing via the legislative process rather than voter initiative, 2021 is arguably legalization’s best year yet.
So far, these efforts have been mostly unsuccessful. But critics in the cannabis industry say this coordinated effort to demonize THC is possibly the most significant push yet to undo cannabis legalization, and it is also darkly reminiscent of the drug war’s worst impulses.
“It’s no accident that this popped up in several statehouses all at once,” said Steven W. Hawkins, the interim CEO of the U.S. Cannabis Council, a major Washington, D.C. lobbying organization, and the executive director of the Marijuana Policy Project.
Banning high-potency THC means that dabs and powerful flower will fall into the same race-based buckets as cocaine-based drugs did in the 1980s. Demand for high THC products, separated from “good” and “acceptable” legal cannabis products, will not abate; this demand will be fulfilled by the illicit market, thus creating new opportunities for police and the criminal justice system to reappear in cannabis.
“It becomes the ‘new crack,’” Hawkins said. “And the only people who are going to suffer are going to be people of color in huge numbers.”
War on Wooks
There is precedent for some restrictions on the potency of cannabis products. For example, most states limit the amount of THC allowed in edible cannabis products to no more than 100 milligrams per package — and require these to be divided into “individual servings” of 10 milligrams.
Though most cannabis advocates believe these are reasonable restrictions and discourage accidental over-consumption, the underground market is replete with “super strength” edibles of 200 milligrams and much more. And some medical patients with severe symptoms require higher dosages, which means they must simply purchase more product to consume.
“I don’t agree with potency caps at all — they’re a ridiculous waste of time, and at the end of the day, all they do is hurt patients,” said Amber E. Senter, a Bay Area-based entrepreneur and CEO of Breeze Distro, a licensed California distributor. In California, THC caps triggered a massive disruption of the edibles market, forcing some companies to end business.
And in Illinois, home of some of the biggest publicly traded cannabis companies in the U.S., the state taxes high-THC products more heavily than mids, which also encourages off-books cannabis activity.
But lawmakers in even established cannabis markets are proposing laws that would remove legal products from dispensary shelves.
Earlier this year in Colorado, home of the oldest legal adult-use market in the country, state Rep. Yadira Caraveo and state Sen. Paul Lundeen introduced a bill that would have capped THC levels in legal cannabis at 15 percent and slapped a host of other restrictions on edible products and concentrates, according to Colorado NORML. Medical patients would be completely banned from buying concentrates, and adult-use customers would not be able to buy concentrates sold under “national brands.”
A fierce backlash gutted the bill, but some restrictions did pass. Earlier this summer, Gov. Jared Polis signed into law an amended version that caps the daily limit for concentrate sales at 8 grams — 20 percent of what was legal beforehand.
In Florida, still medical only but widely considered to be the next major adult-use market, lawmakers earlier this year introduced a bill that would have capped THC in flower — which was initially banned outright in the state — at only 10 percent.
That bill died after opposition from major elected officials including Republican Gov. Ron DeSantis, but DeSantis, a front-runner for the 2024 Republican nomination for president, kept the door open for future cannabis potency restrictions when he repeated a baseless talking point pushed by anti-legalization activists.
“If you look at some of the stuff that’s now coming down, there’s a lot of really bad things in it,” he said, according to reports.
And in the United States Senate, as senators consider a recently introduced federal legalization bill, they are also discussing a national THC cap — and it’s bipartisan.
In March, Sen. Dianne Feinstein (D-California) and Sen. Chuck Grassley (R-Iowa) called on the National Institutes of Health to “make a recommendation, jointly with the Food and Drug Administration (FDA), as to whether states should cap the potency of products that may be sold.”
Cannabis insiders like Senter doubted that hard caps would become law in markets like California, where cannabis use has been widespread and accepted for years — and where there was an established commercial marketplace under medical cannabis, years before adult-use legalization.
“But some of the places that don’t have great advocates, like Florida, this may end up getting through,” she warned.
Policy experts who pushed for legalization say that potency caps are inspired by prohibition-minded lobbyists looking for a win, even if it’s an arbitrary rollback of legalization that will encourage illicit market activity without any practical advantages.
“THC limits were never intended to be applied to inhalable forms of cannabis,” said Mason Tvert, a longtime cannabis lobbyist who helped pass Amendment 64 in Colorado and a partner at VS Strategies, a major policy consulting firm.
“These types of potency limits aren’t workable when it comes to inhalable forms of cannabis like flower and concentrates, and they really raise a lot of concerns,” he added. While potency limits on edibles may be appropriate in order to reduce the likelihood of accidental over-consumption, “you don’t have that type of situation with inhalable products.”
A “Concerted Effort”
According to the U.S. Cannabis Council’s Hawkins, the nationwide push for potency caps is a “concerted effort” that’s partially a sign of legalization’s success but could also be an ill omen for the future.
“It’s a sign that our adversaries realize that they cannot stop us, either at the ballot box or in the legislative chambers, and so they’re thinking of other ways to slow down the progress,” he said.
THC caps should be expected from legalization opponents like New York State’s Lawler, who resisted legalization throughout the legislative process (and issued a press release lamenting the lack of THC caps when Gov. Andrew Cuomo signed the bill into law).
The real trouble will come if an otherwise well-meaning moderate lawmaker accepts a potency cap in order to appeal to conservatives — or if a potency cap is otherwise negotiated into a law as a sign of compromise. The illicit market will continue to thrive, and police and prosecutors would have a brand-new excuse to involve cannabis producers, sellers and consumers in the criminal justice system.
“It could really hurt a lot of the progress we’ve made reversing some of the disparity caused by our criminal justice system,” Hawkins said. “We think it will ultimately backfire.”
If it doesn’t, there are signs of what may happen. Before COVID-19, the biggest scare around lung health in the United States was EVALI, a lung condition triggered by vaporizers. The culprit was illicit market high potency cannabis oil — exactly the products Lawler and other lawmakers want to remove from the legal adult-use cannabis industry.