Invoice intends to manage new type of intoxicating hemp | Legislature

A bill that pits the hemp industry against the cannabis industry has been watered down in favor of a longer-term approach to the issue of lack of regulation of intoxicating hemp and what’s known as Delta-8 THC.

The issue arose when a 2018 farm bill allowed for interstate sales of hemp products. Manufacturers are taking that hemp, distilling it into its THC base, and then adding it to all kinds of products, including edibles. And because those products aren’t made in Colorado, the state’s packaging and manufacturing regulations – which ban edibles from looking like candies or other products attractive to kids – don’t apply.

As introduced, Senate Bill 205 establishes new definitions for adult use of cannabis products, artificially derived cannabinoid, intoxicating cannabinoid, and tetrahydrocannabinol. The measure would task the Marijuana Enforcement Division in the Department of Revenue to come up with rules that set limits for the amounts of tetrahydrocannabinols (THC) and intoxicating cannabinoids in adult use cannabis products, as well as establish procedures for designating and transferring an adult use cannabis product as a retail marijuana product. 

Samantha Walsh, vice chair of the Colorado Hemp Association, said the bill as introduced was a giveaway to the marijuana industry, which would have had total control over the production of intoxicating hemp products.

She said the hemp industry’s concerns focus on the bill’s provisions on manufacturing and processing, which would have disrupted the hemp supply chain, not to mention hurting farmers who grow hemp. Those producers, she added, are perfectly happy to cede sales to marijuana dispensaries. 

Peter Marcus, communications director for Terrapin Care Station, takes the opposite view. 

“It’s very important to us to regulate all psychoactive cannabinoids,” he said, adding that is what SB 205 as introduced would have done.

The issue is regulating a psychoactive substance, which he said should be regulated like marijuana, and which would put it under the oversight of the state’s Marijuana Enforcement Division (MED) in the Department of Revenue. 

The bill’s fiscal analysis explained it this way: Delta-9 THC occurs naturally in cannabis and is the main psychoactive ingredient in medical and retail marijuana. Industrial hemp is defined in Colorado law as cannabis that contains a delta-9 THC concentration of no more than three-tenths of one percent on a dry weight basis. That low content means it’s not considered a Schedule 1 controlled substance.

But now industrial hemp products exist with what’s known as Delta-8 THC, which is synthesized from CBD with the use of solvents and which has psychoactive and intoxicating effects. Those products are not regulated by the state, the fiscal analysis pointed out.

Senate President Steve Fenberg, D-Boulder, a co-sponsor of SB 205, noted that the conversation on Delta-8 THC products has been going on for a couple of years. He thought the parties had come up with a compromise solution.

But the pushback from the hemp industry indicated otherwise, and so he threw out the original bill for a Monday hearing in the Senate Business, Labor & Technology Committee, he said.  

An amendment offering new language instead would for now allow the Colorado Department of Public Health & Environment to regulate the products, and a task force will be formed to look at future rules, Fenberg said. 

The amendment allows CDPHE to come up with rules that could prohibit chemical modification or synthetic derivatives of intoxicating THC, including Delta-8 and Delta-9, which originate from industrial hemp.

Alan Lewis of Natural Grocers told the business committee said the task force is the correct way forward.

“This has a six-year history of stakeholder meetings,” he said. 

The Department of Revenue supports the change to SB 205, said Mark Ferrandino, the department’s executive director.

“It’s important we understand what’s happening in the industry, how to regulate what’s intoxicating, and making sure non-intoxicating things are not put into the regulatory market,” he said.

The task force will allow the state to do that, and the legislation also clarifies the authority of CDPHE to act on public safety and the Attorney General’s office to investigate, Ferrandino told the committee.

The hemp industry wants to see consumer safety enforced first, but the marijuana enforcement division and CDPHE have a role, too, said Hunter Buffington of the state hemp advisory committee at the Department of Agriculture.

“This has to be a concerted effort to make sure we are not using the appetite of a few to enforce those regulations among the many,” she said.

Grant Orvis, who has a hemp business, said he fears the amendment will still harm businesses. He said the bill’s other co-sponsor, Sen. Don Coram, R-Montrose, had another amendment that would have resolved the problems raised in the Fenberg amendment. Coram was not at the hearing Monday and the committee did not review that amendment.

Walsh told Colorado Politics that where the bill started and where it is now is a “massive improvement.”

It is clear that the goal is to give CDPHE proper enforcement authority, she said, adding the bill now gives the task force time to come up with safe levels on cannabinoids in a hemp product and when it’s appropriate for those products to be regulated by the marijuana enforcement division.

Walsh said the intent is not to ban products.

“We will put a lot of faith into this stakeholder task force process in order to get to some sound policy based on science,” Walsh said. 

The committee voted to approve the bill, 4-0. It now heads to the Senate Finance Committee.