Washington State's Aggressive Approach To Preventing Intoxicating Hemp Cannabinoids May Be Adopted In Other States

• Published date: 26 July 2023
• Subject Matter: Cannabis & Hemp
• Law Firm: Wilson Elser Moskowitz Edelman & Dicker LLP
• Author: Mr Ian Stewart

Like other states across the country, Washington has been grappling with how to regulate intoxicating hemp-derived cannabinoid products that are being innovated faster than state lawmakers can respond. The state has decided on an extreme solution that prohibits products containing "any amount of THC" from being sold within the state unless the product is sold pursuant Washington's adult-use cannabis (I-502) regulations. This results in the prohibition of not only intoxicating hemp products but also "full spectrum" CBD products that contain minute amounts of THC. Washington's blunt strategy may appear to be a simple solution, potentially enticing other states to copy the idea as they grapple with intoxicating hemp cannabinoids. It nevertheless raises questions over fairness, effectiveness and the viability of enforcement.

Legal Loopholes

The 2018 Farm Bill unintentionally created significant legal loopholes for hemp products by focusing only on the concentration of delta-9 THC as the single metric of what constitutes federally legal "hemp" versus illegal "marijuana," and by defining hemp as including "all derivatives." This untidy draftsmanship has facilitated the explosion of intoxicating but federally legal delta-8 THC, delta-10 THC and other products that are chemically converted from CBD, as well as legally intoxicating products that contain delta-9 THC extracted directly from the hemp plant. The intoxicating hemp product market was further encouraged by the decision last year from the Ninth Circuit Court of Appeals in the case of AK Futures v. Boyd Street Distro, LLC, 35 F.4th 682 (9th Cir. 2022), which affirmed that delta-8 THC products fall within the Farm Bill's broad definition of legal hemp.

These intoxicating hemp products are now widely available online and have found their way into convenience stores, markets and other retail stores throughout the country. Robust debate over how to address public health concerns and access by adolescents to intoxicating hemp products is now taking place in many statehouses.

Washington Senate Bill 5367

Washington Senate Bill 5367 was first introduced on January 13, 2023. In its original form, the bill simply reduced the amount of THC required in certain products to be considered a "cannabis product," but excluded "hemp consumables," defined as products having THC concentration not to exceed 1 mg per unit or 3 mg per package.

The final version of the bill as passed and enacted goes much further, defining...