In the Weeds: Va. Delta-8 Ban Vetoed, Request to Ban “Copycat” THC Edibles, Calif. Emergency THC Rules

May 4, 2022
Newsworthy Highlights

Virginia General Assembly Vetoes Governor’s Delta-8 Ban. As noted in the April 20, 2022, edition of “In the Weeds,” at the end of the legislative session, Virginia Gov. Glenn Youngkin proposed several amendments to Senate Bill 591 (SB 591). Those amendments proved unpalatable for lawmakers, ultimately causing the bill to fail in the General Assembly’s veto session April 27, 2022. The bill may be revived in future legislative sessions, but for now, the delta-8 debate in Virginia will live to see another day.

Major Food Brands Ask Congress to Ban “Copycat” THC Edible Products. On April 27, 2022, the Consumer Brands Association, along with an assortment of food manufacturers and industry groups, submitted a letter asking Congress to address the proliferation of “copycat THC edible products,” which are labeled similarly to established food products. The letter highlighted the risk to children:

While cannabis (and incidental amounts of THC) may be legal in some states, the use of these famous marks, clearly without approval of the brand owners, on food products has created serious health and safety risks for consumers, particularly children, who cannot tell the difference between these brands’ true products and copycat THC products that leverage the brand’s fame for profit. While law enforcement focuses on addressing illegal sales, this unscrupulous practice has pointed out a gap in existing law — the widespread online sale of packaging that leverages these famous brands.

In the past year, there have been numerous documented instances of children consuming THC-infused edible products; according to the U.S. Food and Drug Administration, between Jan. 1, 2021, and Feb. 28, 2022, national poison control centers received information about 2,362 exposure cases involving delta-8 THC products. Of those cases, 41% involved pediatric patients.

In response to these concerns, signatories proposed legislative changes to the SHOP SAFE Act. Currently, the SHOP SAFE Act creates liability for e-commerce platforms that advertise, sell or distribute goods with “counterfeit” marks that “implicate health and safety.” Signatories proposed expanding this law to include liability for goods with “famous or counterfeit mark[s] … that implicate health and safety.” This would, in the view of the signatories, “clos[e] a loophole in the existing language to address a critical health and safety issue.”

California Issues Emergency Regulations on CBD; Comment Period Ends May 31, 2022. On April 20, 2022, the California Department of Public Health (CDPH) published proposed emergency regulations that detail proposed registration requirements for in-state industrial hemp manufacturers and out-of-state industrial hemp extract manufacturers. The regulations differentiate between industrial hemp manufacturers of extract, human food (including beverages, dietary supplements, and acidified and/or low-acid foods), pet food and cosmetics, and require each manufacturer to obtain the appropriate registration based on the products manufactured. If the proposed rule is adopted, manufacturers that make different types of products may need to hold multiple registrations.

All registrants, including industrial hemp manufacturers of inhalable products, would be required to obtain industrial hemp enrollment and oversight authorization and pay the appropriate fees. A separate authorization application and fee would be required for each location used for processing, manufacturing, packing, repacking, labeling, warehousing or holding. Notably, each out-of-state industrial hemp manufacturer of extract would also be required to obtain and maintain processed food registration by registering with CDPH, annually renewing its registration, and paying the appropriate fees if the manufacturer intends to extract outside California for import into California.

The CDPH will accept written comments on the proposed emergency regulations until May 31, 2022. Comments received shall be considered by CDPH. The final adopted emergency regulations will be filed later with the Office of Administrative Law for publication in the California Code of Regulations.

Grassroots Federal/State Legislative Highlights

Missouri Continues Push for Recreational Marijuana. A Missouri advocacy organization recently announced it has obtained enough signatures on a ballot initiative proposing to legalize adult-use marijuana in the state ahead of the May 8, 2022, signature submission deadline. The proposed amendments authorize adult use and outline a state licensing regime for cultivation, manufacture, transportation, dispensing and sale of marijuana, in addition to proposing taxing the retail sales of marijuana. The ballot proposes to prohibit public use of marijuana, driving while under the influence of marijuana, use of marijuana in the workplace or use by anyone under 21 years of age. It also proposes certain amendments to the existing medical marijuana program.

Connecticut House Passes Bill Limiting Cannabis Advertising and Gifting. On April 26, 2022, the Connecticut House passed House Bill 5329, which proposes several changes to the state regulation of adult use of cannabis. The bill includes additional limits on advertising and gifting. As for advertising, the bill prohibits cannabis advertisements from out-of-state entities, limits billboard advertisement between 11 p.m. and 6 a.m., and prohibits advertisement within a certain distance from public buildings. As for gifting, it proposes specific restrictions on gifting cannabis to induce or in exchange for any donation or to gain access to any event, or as an event giveaway such as a door prize or goodie bags. The bill also prohibits gifting at any location other than a cannabis retailer where a consumer may purchase any item other than cannabis, or a location that requires consideration for admission such as a membership.

Tennessee Enters Delta-8 Debate. Tennessee has never been a particularly favorable jurisdiction for cannabis, as it is one of only a few states that still consider possession and sale of certain amounts punishable by incarceration. It comes as no surprise that Tennessee lawmakers aim to prohibit all delta-8 THC products through proposed HB 1927. The bill would define any product with a concentration of THC above .3% as marijuana under Tennessee law and, if passed, could lead to an increase in felony arrests in the state for possession and intent to sell. If the bill passes, it will again signal Tennessee’s position as anti-marijuana for both medical and adult use. The bill is still in the beginning phases of consideration; however, Tennessee continues to maintain its place as a particularly challenging state for cannabis.

California Proposes Protecting Cannabis Users From Employment Discrimination. The California legislature is evaluating Assembly Bill No. 2188. The bill, if enacted, would prohibit California employers from discriminating against employees for off-duty cannabis use. The amendment to California’s Fair Employment and Housing Act would also prohibit discrimination against applicants who fail drug screening tests detecting nonpsychoactive cannabis metabolites (i.e., the chemicals that stay in an applicant’s system long after the psychoactive effects of cannabis have worn off).

The proposed law carves out exceptions for employers required to follow federal drug-testing mandates (e.g., those receiving federal funding or federal licensing-related benefits) and employees in the building and construction trades. The bill acknowledges employers may still prohibit on-the-job cannabis use and recognizes that employers may choose to employ other tests that detect impairment. The bill’s proponents agree that traditional drug tests do not effectively detect workplace impairment, while opponents express concerns about the reliability of the alternative impairment-based testing and do not agree with the complete elimination of preemployment testing for cannabis. 

The bill is currently under review in the California Assembly and will need to pass both houses of the Legislature before it is sent to Gov. Gavin Newsom’s desk.

“In the Weeds” is McGuireWoods’ biweekly ounce of highlights in the budding cannabis, hemp and CBD industries. For more information, see our newsletter archive, our Edible Bites podcast series (available on Apple and Spotify), or visit our Cannabis, Hemp & CBD practice.