“When you’re putting these things into the stream of commerce and you look at the 10th Amendment, there’s really nothing in the U.S. Constitution that says that we can’t clearly legislate this type of issue.”
By Rebecca Rivas, Missouri Independent
A Republican state senator has filed legislation to renew last spring’s failed effort to regulate intoxicating hemp products in Missouri, such as Delta-8 drinks and edibles.
Delta-8 THC products can be sold in stores in Missouri because the intoxicating ingredient, THC, is derived from hemp, not marijuana which is a controlled substance. And hemp is federally legal.
There’s no state or federal law saying teenagers or children can’t buy them or stores can’t sell them to minors—though some stores and vendors have taken it upon themselves to impose age restrictions of 21 and up.
And there’s no requirement to list potential effects on the label or test how much THC is actually in them.
State Sen. Nick Schroer, a Republican from O’Fallon who chairs the legislative committee that oversees Missouri’s marijuana rules, said the products are too easily accessible to children, particularly teenagers.
“I’ve had constituents reaching out to me saying that their kids had been hospitalized,” Schroer said.
Schroer’s bill would task the Missouri Department of Health and Senior Services (DHSS) with regulating these products, as the agency currently does for the state’s marijuana program. And products would have to be sold at DHSS-licensed dispensaries. State Rep. Chad Perkins, a Bowling Green Republican, has filed a companion bill in the House.
DHSS spokeswoman Lisa Cox said the department does not take positions on proposed bills.
“However,” she said, “we do acknowledge the potential and ongoing public health impact of unregulated THC products.”
Over the past few years, Cox said there’s has been an increase in children going to the hospital for cannabis exposure.
“The department has increased its emphasis on regulatory mechanisms that protect health and children in order to minimize any contribution of the regulated cannabis market to such incidents,” she said. “As of right now, there is no such protective framework for unregulated THC products.”
Sean Hackman, president of the Missouri Hemp Trade Association, said his organization advocates for measures such as prohibiting sales to minors and mandating clear user instructions and rigorous product testing.
“While any overdose report, especially those involving minors, is deeply concerning, this does not constitute a public health emergency but rather an opportunity for improved regulation,” Hackman said in an email to The Independent in response to the legislation.
The association opposes tasking the department with regulating the products and requiring them to be sold in dispensaries.
A similar bill filed by Republican state Rep. Kurtis Gregory of Marshall got stuck in committee during the last legislative session.
During a hearing on the bill, both Republican and Democratic lawmakers pushed back on the idea of forcing the hemp industry under the umbrella of DHSS, saying that would allow the “marijuana monopoly” to take over this market given the limited number of licenses for dispensaries available.
After voters passed a constitutional amendment allowing medical marijuana in 2018, competition for licenses became fierce when the state capped the number of applications it would approve—initially issuing 338 licenses to sell, grow and process marijuana.
Widespread reports of irregularities in how applications were scored fueled criticism of the industry and accusations that insiders were building a monopoly. That criticism spilled into the campaign to legalize recreational marijuana last year, though the proposal still won voter approval.
Some applicants who didn’t land medical marijuana licenses turned to producing hemp-derived THC products.
Another concern critics had last year was that hemp is federally legal, and lumping it in with the regulations of a controlled substance could result in lawsuits.
Schroer said he’ll be closely watching the ongoing legal case of Robertsville-based marijuana manufacturer Delta Extraction.
Delta Extraction had its license to manufacture cannabis products revoked in November, months after a massive recall pulled more than 60,000 products off the shelves—which the state says were illegally made with a hemp-derived THC concentrate imported from out of state.
While hemp is federally legal, state regulators argue that once hemp-derived THC comes into the marijuana realm, they can regulate it.
The question currently before the Administrative Hearing Commission is whether or not Missouri regulators have the authority to prohibit licensed companies from infusing Missouri-grown marijuana products with hemp-derived THC.
If the company loses its appeal before the commission, then Delta will continue to fight in court, the company’s attorneys have said.
And Delta will be arguing the state has no authority to regulate hemp products at all.
“The Division of Cannabis Regulation’s authority to regulate is limited to non-hemp marijuana and does not depend on whether it is used to make THC,” Delta’s attorney, Chuck Hatfield, wrote in a recent letter to the department.
Schroer said his proposed legislation will be mindful of the court’s decision in the case.
“We’re still going to use this judicial guidance to craft a type of law compliant with that case law,” he said, “that is going to protect the youth of our state and any type of consumer of these types of products.”
In September, a federal judge in Arkansas sided with hemp companies in granting a preliminary injunction on a state law—similar to the one Schroer and Perkins have proposed—aimed at regulating hemp-derived THC.
U.S. District Judge Billy Roy Wilson said if Arkansas wants to participate in the federal hemp program, then it can’t pick and choose which parts of the law it wants to follow.
Despite the preliminary court order in Arkansas, Schroer said he’s not convinced the federal government has the authority to prevent state legislators from passing laws to regulate intoxicating cannabinoids.
“When you’re putting these things into the stream of commerce and you look at the 10th Amendment,” he said, “there’s really nothing in the U.S. Constitution that says that we can’t clearly legislate this type of issue.”
This story was first published by Missouri Independent.
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