Newsom wants to ban intoxicating hemp products. Industry — and some health experts — say he's going too far

California is seeking to crack down on sometimes-toxic hemp products containing THC, sparking ire from an industry that has for years operated with little scrutiny.

Last week, Gov. Gavin Newsom (D) proposed emergency regulations that would require all such consumable items to be free of any detectable THC, with the goal of protecting children from dangerous impacts. The rules, which would be among the strongest restrictions on the hemp industry in any state, would also restrict the purchasing age for hemp to 21 years old.

"In the industry, there's full responsibility for not policing itself for the proliferation of these intoxicating products that are hurting our children," Newsom said at a press conference, noting the presence of these items in school-adjacent grocery stores. 

As opposed to California's cannabis industry, which is highly regulated, its hemp sector — like that of most U.S. states — operates with few restrictions.

This inadvertent free-for-all was the result of a provision of the 2018 Farm Bill — a multiyear legislative package that governs a wide range of agricultural programs. The bill created a statutory definition for hemp unique from that of marijuana and thereby removed hemp from Drug Enforcement Administration oversight under the Controlled Substances Act.

With that legalization of hemp has come mass distribution of mystery products that undergo no federal oversight and are left to be controlled — or not — by individual states.

"It's crazy that we're producing all these new cannabinoids — some old, some new, none of them regulated," Peter Grinspoon, a primary care physician and cannabis specialist at Massachusetts General Hospital, told The Hill.

In contrast, he explained, a marijuana product that enters a cannabis dispensary is tracked from seed to sale and is tested “for fungus, heavy metals, lead, industrial byproducts, pesticides.”

Although hemp and marijuana come from the same Cannabis sativa species, they differ in just how much of the psychoactive component, delta-9-tetrahydrocannabinol (THC), they contain.

Hemp contains 0.3 percent or less THC and does not create a "high," as opposed to marijuana, which has a typical potency of about 15-20 percent THC. Meanwhile, non-psychoactive cannabidiol (CBD), known for its relaxing and medicinal qualities, is found in both hemp and marijuana.

In states like California that lack hemp regulations, however, items with unidentified ingredients ranging from THC to pesticides have emerged on supermarket shelves and in the hands of children.

The 2018 farm bill "legalized all these cannabinoids without any regulatory system," Grinspoon stressed, noting that people also gained access to synthetic hemp alternatives without knowing what they contain.

There has been ample push to make intoxicating forms of hemp illegal in the next rendition of the farm bill — initially expected to take effect this year — but the broader legislative package has faced continued delays.

Other states have already taken their own steps to regulate the hemp industry. Hemp cultivation in Kentucky requires a license, and all items that contain cannabinoids must adhere to facility-permitting and product-labeling demands.

Another state, Colorado, updated its hemp product safety regulations in November — clarifying manufacturing, testing, registration and labeling requirements and providing distinct rules for non-intoxicating "hemp products" and intoxicating "safe harbor hemp products."

Kentucky and Colorado have limited the sale of intoxicating hemp products to individuals 21 years or older.

In California, a bill that would have restricted certain industrial hemp products failed to pass the State Senate this summer, after gaining the support of the Assembly in May.

That legislation would have built upon AB 45, an October 2021 bill that required the registration and independent lab testing of hemp products — to ensure that THC levels stay below 0.3 percent.

Consumable hemp products, per AB 45, must include bar codes that link to test certifications, expiration dates, warnings for vulnerable populations and disclaimers noting the lack of federal safety review. The 2021 law also enabled the California's Department of Public Health to adopt any regulations deemed necessary to enforce the bill's goals, in compliance with future federal laws.

This summer's failed AB-2223 bill, authored by Assembly Majority Leader Cecilia Aguiar-Curry (D), sought to limit THC content not only to 0.3 percent by weight but also to 0.25 milligrams per serving, with a maximum of five servings per package.

Prior to the State Senate vote, Aguiar-Curry's office stressed the need to close "a loophole in federal law that measures THC content by weight, rather than intoxicating effect,” while also preventing the sale of certain synthetic cannabinoids.

The bill also would have allowed licensed cannabis dispensaries to sell hemp products and integrate them into the existing — and highly regulated — cannabis supply chain.

The U.S. Hemp Roundtable, an advocacy group that represents dozens of hemp and CBD companies and organizations, celebrated the legislation's failure to pass in the State Senate.

Newsom offered a temporary fix with last week's proposal, which he characterized as an "interim" solution that would hold bad actors accountable while lawmakers work on new legislation.

"We believe hemp, even hemp with intoxicating components, can be sold, but they must be sold in a regulated environment, not in grocery stores, not in corner stores all throughout the state of California," Newsom said.

U.S. Hemp Roundtable representatives slammed the governor's proposal, stressing in a press statement that Newsom was able "to effectuate what the legislature did not" and that they were "already planning for a major fight."

Jonathan Miller, the group's general counsel, accused the governor of launching an all-out prohibition rather than "addressing legitimate regulatory concerns shared by all good actors” and acting upon the October 2021 legislation. 

"There are pathways that accomplish what he is most angry about without destroying the industry," Miller told The Hill. "They need to start enforcing AB 45 and ensuring that all products out in the marketplace are produced with good manufacturing practices and tested."

To that end, Miller on Thursday sent a letter to the governor voicing agreement that hemp products "must be robustly regulated and kept out of the hands of minors."

"But your proposed regulations are the wrong approach," he wrote. "And frankly, we believe that you are being misled."

Elaborating on this hypothesis, Miller told The Hill he believes that Newsom has "folks in the marijuana industry telling him that they're struggling, and they're blaming their problems on hemp."

Miller warned in the letter that "prohibition never works," adding that a retail ban on all THC-containing hemp items would be unreasonable.

"There’s detectable THC in nearly every hemp product, including the large majority that are non-intoxicating," Miller wrote.

Requesting that Newsom withdraw his proposal, Miller added that industry would prefer to work with the governor than take him to court. The Hill has reached out to the governor's office for comment on these demands.

Citing precedent from other states, Miller praised Kentucky’s approach to hemp, noting the bipartisan effort that went into formulating those rules.

From Miller's perspective, California should be conducting random product checks, while also establishing a meaningful age gate on purchases — similar to the rules that apply to alcohol sales.

"Instead of robustly regulating these products, he's banning nearly everything," Miller said of Newsom.

Representatives of the legal cannabis sector, on the other hand, voiced their support for the governor’s emergency regulations.

Vince Ning, co-founder and CEO of cannabis distribution platform Nabis, said in a statement that he views the proposed ban "as a necessary, larger push for safe, reliable access to plant medicine products."

"It’s imperative that access to any cannabis product — hemp-derived or not — always comes hand in hand with the clear protection of consumers," he added.

By proceeding with this dual approach and closing the regulatory gap, stakeholders in both the legal cannabis and hemp-derived industries could benefit from greater stability, according to Ning.

Similarly, Dustin Moore, the co-founder of Embarc cannabis shops, warned that "the untested and unregulated intoxicating hemp market" has spread outside California's established framework for legal cannabis operations.

"If the existing framework is not sustainable, we must come together to modify it and not allow a shadow industry to thrive outside it," Moore added.

Grinspoon, the Massachusetts General cannabis specialist, fell somewhere in the middle — stressing the need for regulation but criticizing some of Newsom's tactics.

"It's like a very heavy handed and sort of partially wrongheaded response to a very real and urgent problem," he said.

Many new cannabinoids could have therapeutic benefits but require both further study and regulation, according to Grinspoon, author of the related book, "Seeing Through the Smoke."

"I'm not a fan of completely unregulated, intoxicating products that are contaminated with industrial byproducts that anyone can get," the physician added.

But Grinspoon expressed concern that outlawing THC-containing hemp products entirely could have dire consequences and simply prove ineffective, since products could cross state lines. He also looked back on the “disaster” that he believes ensued from War on Drugs-related prohibitions.

"It just results in people — the whole trade, billion-dollar industry — going underground and becoming all the more dangerous," Grinspoon said.