Delta Blues? The Legal Status of Δ8-THC Today and in the Future

By Mark Yurachek and Danielle Johnson

Recently, this single post from Reddit caused our phones to ring off the hook with people wanting to find out if Δ8-THC had suddenly been banned in Georgia and, we’re confident, caused a great deal of panic among our colleagues and their cannabis clients throughout the country. We thought, then, that it would be a good idea to review the legal status of Δ8 to try and at least identify the issues for all who might be curious about the newest celebrity cannabinoid which has been covered by the New York Times and Rolling Stone Magazine already this year. We will circle back to key in on Georgia, the source of the recent kerfuffle, but this issue may well ultimately be settled by the federal government, not the states, and that will be our focus.

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$25 G’s To Roll A J? My Thoughts On HB 847

By Mark Yurachek

Within Georgia’s cannabis community, HB 847, which includes many proposed changes to Georgia’s Hemp Farming Act, has caused almost as much hysteria as the Coronavirus. The bill originally proposed was a provision for misdemeanor punishment for negligently violating O.C.G.A. §2-23-4, and felony punishment for intentionally violating it. Those controversial provisions were withdrawn from the bill which recently sailed through the Georgia House and is presently before the Senate, but many other provisions, which may have a profound effect on Georgia’s nascent hemp industry, have changed.

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Still Smokin’: What In the World Is Georgia Going To Do About Smokeable Hemp?

Many believe that the nationwide decriminalization of marijuana will be a potential unintended consequence of the federal legalization of hemp vis-à-vis the 2018 Farm Bill.

Legalization and decriminalization are distinct terms. Legalization, in this context, means that the U.S. Government, along with a large majority of states, has passed laws permitting the possession and trade in industrial hemp and its products. Decriminalization, on the other hand, does not mean that possession or trade in a product is legal. It means, for one reason or another, that the laws making certain behavior, like possessing or trading in marijuana, punishable by fine or deprivation of liberty, e.g. imprisonment, cannot or will not be enforced.

A flashpoint for the decriminalization debate has been the conundrum of what to do about smokeable hemp, which is exactly what it sounds like: raw, unprocessed cannabis with a THC-Δ9 level of .3 or less and is ingested by smoking. With little or no THC-Δ9, the psychoactive ingredient in cannabis, why smoke hemp at all? The short answer is that users smoke hemp to get the benefits of marijuana, which users have claimed to alleviate everything from anxiety to the side effects of cancer treatment, without its psychoactive effects. Many users prefer smoking hemp to treating themselves with CBD creams and oils because hemp delivers full spectrum, i.e. all cannabinoids and not just CBD which, by the way, smokeable delivers at higher levels than, for instance, oil. Smoking hemp also delivers cannabinoids to the bloodstream more quickly than a topical treatment, thus delivering its benefit to the user more quickly. Farmers favor growing smokeable hemp because it costs almost nothing to process and is therefore highly profitable.

With so many benefits, you may think states are encouraging the production and sale of smokeable, but that has not been the case in a lot of jurisdictions. Notably, Texas, Kentucky, Louisiana, N.C. and S.C. have either banned it or are trying to ban it. N.C. has had a contentious fight over smokeable in its legislature and the battle, nearly a year old now, is not over yet. The USDA’s interim final rules do not address smokeable at all, primarily because they only provide baseline regulations for issues related to growing as opposed to processing or selling hemp.

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Say What? Georgia’s Rejected Hemp Plan And What It Means For Growers In 2020

by Mark Yurachek

Recently, the AJC published this article indicating that Georgia’s Industrial Hemp Plan needed to be revised before it would be approved by the USDA, thus opening the door for Georgia to issue licenses to grow hemp. So what does that mean for hemp production in Georgia?

According to Gary Black, Georgia’s Commissioner of Agriculture, what it means is that Georgia farmers will have to wait to grow hemp until the state’s plan is approved. The plan was sent back because it failed to certify that it had the resources and personnel necessary to implement its plan and Georgia did not do that. Why? Because nobody budgeted money for doing so (it says so right in the plan). No problem, right? Commissioner Black would just go back and request $1.6 million in state funds to implement the program over the next two years. Only, that’s the problem. Specifically, tax revenue is not growing fast enough and Georgia is currently in a budget crunch, with all government departments, including the GDA, being ordered to slash their budgets in a state which has never been shy about shooting itself in the foot if it means not creating additional taxes.

So, it seems possible, maybe likely, that Georgia will not be able to make the necessary changes to its Industrial Hemp Plan to gain approval from the USDA in time for the 2020 growing season, since “the necessary edits cannot be fulfilled within the current statutes of the Georgia Hemp Farming Act and the 2020 budget.” What caught my eye is that Commissioner Black stated that that means that there will be no legal hemp growing in Georgia in 2020.

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Regulate: The Interim Final Rules, Key Participants And Background Checks

by Mark Yurachek

I’m kind of late to the party in offering my initial thoughts on the USDA’s interim final rules on hemp, but I finally got a few minutes to sit down and read them and I do have some thoughts. As a side note, I am a big fan of the CannaLaw Blog and Jesse Mondry wrote an excellent summary of the relationship between criminal history and licensing under the Rules last week. I want to expand upon some of the questions Jesse’s article raises and dig a little deeper into them.

7 USC §1639p(e)(3)(B)(i) and its parallel provisions in the Rules forbid “any person convicted of a felony relating to a controlled substance under State or Federal law before, on or after December 20, 2018,” from “partcipat[ing] in” the USDA program or “to produce hemp under any regulations or guidelines” established under that statute, “during the 10-year period following the date of the conviction.” The Supplemental Information to the Rules states:

[t]o meet this requirement, the State or Indian Tribe will need to review criminal history reports for each applicant. When an applicant is a business entity, the State or Indian Tribe must review the criminal history report for each key participant in the business. The State and Tribe may determine the appropriate method for obtaining the criminal history report for their licensees in their plan. Finally, any person found by the USDA, State or Tribal Government to have materially falsified any information submitted to this program will be ineligible to participate.

The text of the Rule raises a number of questions for me: 1) what discretion do the states have in applying this Rule? 2) what constitutes a “conviction?” 3) what is “participation?” and 4) what happens to an entity which produces without a license?

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Testing, Testing T-H-C

By Mark Yurachek

Catching up on the week’s cannabis news, I came across this press release from DetectaChem concerning a phone app which they claim can measure THC content, which thus would enable police to differentiate between legal hemp and, in many states, illegal marijuana, during a routine traffic stop.

Detectachem’s website indicates that a sample of the cannabis would be tested, as opposed to a breathalyzer-type test which would indicate concentration in the body. The website does not indicate what kind of testing is used to reach the determination and, as I wrote here, it is important to know what kind of testing is being used.

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The Thin Green Line: The Need for Uniform Testing in the Hemp Industry

The Need for Uniform Testing in the Hemp Industry

by Mark Yurachek

When I was young my father had a t-shirt which had 4 identical cartoon pictures with the captions, “Banker, Broker, Lawyer, Crook.” I was reminded of that shirt while considering what would happen to a hemp processor in Georgia, where I work primarily, who imports hemp which was certified by an out-of-state lab as having a total delta-9 tetrahydrocannabinol (THC-Δ9) concentration within acceptable standards, only to have a Georgia lab conclude the opposite.

In Georgia, testing for THC-Δ9 is a crucial aspect of the hemp trade, as it potentially spells the difference between a hemp farmer and a marijuana trafficker. Per O.C.G.A. §2-23-8, the Georgia Department of Agriculture (DOA) has the right, itself or through contracted labs, to test all licensees’ (growers) and permittees’ (processors) hemp randomly. If the testing reveals a THC-Δ9 concentration of more than 0.3 percent on a dry weight basis, the entire crop with the same GPS position (for licensees) or “all related hemp products” (for permittees) will be destroyed at the owner’s expense.

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