Cultiva Law

The De facto Legalization of Cannabis

We are living in a new age for the Cannabis plant. We have not seen such prevalent, legal use of cannabis across the US and the world since the 1920s. It took nearly 100 years to get here, but
few people consider how that happened. When I use the term cannabis, I am referring to all varietals, cultivars, and chemovars of the plant. This includes hemp and marijuana, as both are nforms of cannabis. The only thing that currently separates them is an arbitrary number. Cannabis has taken many forms for myriad reasons across the globe; we now live in a world where it is widely accepted, and it’s incredible! The most promising transition of the last decade is what came to be the De facto legalization of cannabis.

Cannabis is Cannabis
Hemp is cannabis, and so is marijuana. They are the same plant species with varying differences in the cannabinoids they create. As far as any botanist is concerned, these are both in the Cannabis Sativa L. species. Their chemotype (sometimes referred to as cultivar, or often incorrectly referred to as a “strain”) determines the valuable cannabinoids. Some produce astonishingly high amounts of THCa, some CBDa, and CBGa, while more exotic cannabinoids produce CBL, CBC, CBDv, THCv, to name a few. The differentiation of hemp and cannabis, as accepted today, is almost laughable. Solely based on a book written over fifty years ago by an author that was all but forced to find a distinction between the two [1]. The author made a lot of statements that have evolved over time such as the premise It is impractical to attempt to distinguish between the two [Hemp and Marijuana] but for the difference of, CBD or [THC] there are little indicators other than varietals grown in northern [or southern] locations. Forced to find a distinction, he specifically assigned the .3% THC as the deciding factor in deciding a narrow scope of taxonomy between Cannabis Indica and Cannabis Sativa L., not necessarily for the sole purpose in determining impairment thresholds. At the time, the average THC or CBD concentration in the plant was 1-3%, making a 10:1 or 3:1 ratio acceptable to distinguish between the two. Usually, a ratio can give you a ballpark of your potential CBD levels when harvesting for total THC compliance. 35:1+ is ideal in CBD, as it allows a very high amount of CBD with very low quantities of THC. In today’s terms, with selective breeding and a 15% concentration of CBD or THC easily reached, that would be an allowance of 1.5%-5% THC. Let that math sink in. Not only is it arbitrary, but it is also no longer applicable in today’s cannabis market.

Many readers here already know that hemp (and its cousin marijuana) was once legal. Hemp was mandated to grow through many wars, but ultimately was banned because ”drugs are bad.” However, since the 1960s, many advocates have demanded a change to the archaic drug laws of our nation. These efforts have allowed us to reach a point that many talked about but never saw happening in their lifetime. Currently, over 36 states and territories have legalized the medical use of cannabis (marijuana), and twelve additional states have specific CBD medical cannabis laws on the books. More astoundingly, 19 states have legalized recreational cannabis (marijuana). Public sentiment is changing, politicians are listening, and the government is responding in a new way. However, all this pales in comparison to the  few steps that created a De facto legalization of cannabis.

The Hemp Bill
In 2014, Congress first included an amendment in the 2014 Farm Bill to allow the cultivation of Industrial Hemp under the old definition of stalks, seeds, and resins thereof. This did not allow for much cultivation of High CBD or flower-grown plants but stuck predominately to the long fiber growing hemp as “acceptable.” However, the 2014 Farm Bill allowed the Hemp Industry to be what it is today and paved the way for cannabis across the United States. The buzz about CBD blended into the recreational market, with CBD products hitting recreational shelves in every category, blending from 30:1 to 1:1 ratios of CBD to THC. Unfortunately, at the time, High CBD cultivars weren’t known for their great aroma or flavors, with many resembling a hay-like scent. This hindered the supply of high-CBD flowers in the marijuana space, but the hemp supply continued to grow. Around this time, a shift in the marijuana market drove prices down across the board, with little improvement seen. As supply and demand grew closer together, the thoughts of “millions” faded from investors’ minds, who grew focused on breaking even and managing lawsuits. However, over time, prices fell, and the market became driven by high-THC numbers and little else. Retailers were driving down prices, and the large supply of mediocre flowers made it hard for most growers to get projected pricing. This was the “Crash” of many people’s cannabis dreams. However, hemp was still trudging along, though less quietly now. Coalitions were forming for the progression of hemp, and the precious cannabinoids it could yield.

In 2017, states began instituting pilot programs to grow industrial hemp. Additionally, the Hemp Industries Association sued the DEA over industrial hemp and its continued adverse stance. This caught the attention of the people and eventually, the politicians. I fondly recall talking with a Senator who told me, point blank, “We really want this crop to work for our state, we could use another agricultural crop, especially with so much value. Let us know anything we can do to help you succeed here.” I remember thinking, “Wow, I cannot believe I just had a senator offer his help for a hemp crop. Did he just say that?” Shortly after, it was full-blown CBD fever. Prices were astronomical, with CBD isolate going for $8,000-$10,000 per kg and exotic
minors going for $60,000-$80,000 per kg. Suddenly, marijuana took a back seat to its (formerly) less desirable cousin. This was the launch sequence that led to the cannabis boom. Thousands applied for licensure, all chasing cannabinoids, just as they had done with marijuana. Tens of thousands of acres would be licensed to grow, and a large chunk of marijuana investment shifted to hemp. Suddenly, lines blurred between hemp and marijuana. Talks of smokable flower popped up, only to be rejected as foolish. Everyone was focused on CBD isolate and other minor cannabinoids. With the production of hemp in the 2018 season at its highest, an oversupply occurred, and the same patterns in marijuana began to ensue. Cheap quality supply and false promises led the price to be driven down. What was once $8,000/kg was now $5,000/kg and falling. Everyone was so desperate to offload that they accepted deflated pricing that shook the market. This drove the average pricing down farther and farther, with investors viewing this as Marijuana 2.0, only twice the failure.

A Glimmer of Hope
At this same time, regulators were scrambling for what I believe to be one of two reasons: to tax hemp or to protect hemp farmers. This ultimately led to the Farm bill of 2018, which had a dream-driven provision. The Hemp Industries Association fought to create protections for industrial Hemp and all cannabinoids produced by hemp. This would be the defining moment for hemp. Its removal from the Controlled Substances List was a massive win for hemp and cannabis. Hemp was finally legal again! Celebrations were had by all who worked to see this through, and industry professionals finally began to feel less like outlaws and more like legitimate agricultural entrepreneurs. It wasn’t perfect, and even with this amazing step forward, we still had the lingering arbitrary number of .3%, which changed from .3% D9-THC to .3% TOTAL THC. This was a significant issue as Total THC laws made many crops unusable and subject to potential destruction, as it’s very difficult to get an exact estimate of the total
potential THC level. This can depend on anything from genetics to location, nutrients, stress, and hundreds of other unknown factors. With established total potential THC limits set so low, many people still choose to opt-out of CBD, despite the legalization of hemp. This carried over to the 2019 season, with many growers going for the next thing, CBG, a precursor cannabinoid found early on in cannabis species. Depending on its genetic makeup, it could convert to THC or CBD within the plant. This kept THC numbers low, with the average total THC at .2% across the nation. This led to a rise in something once viewed as foolish. People started growing smokable hemp flower. A cannabis bud, that, if smoked, wouldn’t get you high traditionally, but more lucidly relaxed. This appealed to those that enjoyed the flavor and effects of smoking cannabis flower without intoxication or failing drug tests. The market limped along, barely surviving
when 2020 came, along with the advent of Delta 8-THC isomers and niche products. Delta 8- THC is, simply put, a hemp-derived isomer converted from CBD. There are some opinions out there on the legal status of Delta 8 THC, but one fact remains. The 2018 Farm Bill specifically protects all hemp derived cannabinoids, by removing them from the Controlled Substances List, “hemp, and all constituents, salts, isomers, and derivatives thereof…” So, you can form your own opinion on why the government is now trying to regulate, per authority under the CSA, an isomer created from natural constituents of the industrial hemp plant. This is where we start to see the light, and things start coming into focus.

Mailing Cannabis
In the last two years, there has been a significant shift. Many new categories of Hemp have come into existence, including smokable flower, concentrates, topicals, and capsules, similar to how the marijuana market works. The markets are seemingly merging and creating a larger cannabis market. This is what pushed us over the line to De facto legalization. I have been called on to retrieve many shipments from shippers thinking they just made a huge marijuana bust. In one instance, I had an elected sheriff (in a small town) tell me that he’s been an officer for over 35 years, and there was no doubt in his mind that what was in the post was high-grade marijuana. You just can’t argue with that perspective and waiting for test results takes about a year of the product sitting in a hot storage room in the south. It is not going to be worth much when it’s finally resolved. So, I went to the overall commander and explained the situation, providing all my client’s documentation; he made the call to release despite his subordinate’s initial objection. Usually, the only issue with the shipment was that the package smelled very strong. This was one of many calls I made, and with a 98% success rate in retrieving packages of
hemp products, I realized two major things. No matter the state, no one seems to tell the difference between hemp and marijuana because there is no difference without testing. Secondly, there was no issue with the government shipping hemp. The hemp itself was a non- issue; it was nearly always because it smelled, that is it. Not necessarily that it smelled like cannabis, just that it smelled. Usually, not a dog, but a person could smell it. Turns out, anything that has an odor (smoked salmon, cookies, and especially cannabis) is deemed “unmailable” and pulled. This was huge, and as a fan of the legal system and progressive movements in history, this was what I saw as the true beginning of legalization. Most states had simply decriminalized while feigning legalization, but this was an actual moment in time where we had a legal product that was initially, at face value, the same as its Schedule 1 counterpart. If there is no discernable difference, the assumption should be lawful actions. As we are innocent until proven guilty, how does this play out?

Not Legal Advice
My attorney friends tell me that intent is a big part of it. If someone has hemp flower packaged as a well-known cannabis brand, selling it as off-market marijuana on the street or in the mail, it’s still seen as an intention to sell marijuana, regardless of whether the recipient knows it’s marijuana. They tell me, “Just because you sell bunk product, doesn’y mean you’re any less of a drug dealer, in the eyes of the law.” However, when it comes to a car smelling like cannabis, well, that’s because it is cannabis. Since federally lawful hemp and its schedule one cousin smell exactly alike due to the exact terpenes in both, is there probable cause? Just because you’re smoking a substance that smells like marijuana at your local national forest, does that mean the park ranger can still use that “smell of burnt marihuana” alone to search you? Do they know there’s no way that a test result could be processed in time under a lawful detainment? These are just a few of the many questions we have moving forward. What about mildly psychoactive hemp products? What amount of Delta 8 can I have in my system and drive? What does Delta 8 metabolize into? How can you test for HHC when no known metabolites are being tested for?

Very few people, if any, know the answers to these questions. If using products under .3% THC is legal, and you happen to process THC in a way that causes you to build up metabolites (Carboxy-THC) quickly, are you committing an unlawful act? Are you committing an act against workplace policy and the drug-free workplace act? Is it still illegal even if you didn’t get high? What about smoking a hemp cigarette in a park? If you have a pound of high grade in your trunk, who’s to say it’s not hemp flower? Every probable cause statement I have seen contains phrases such as “smelled the distinct smell of marijuana” and “from my training, appeared to be marijuana.” These and many other phrases specifically list the smell and look of a product to determine whether a crime is being committed. You can see where this is going. I am not advocating for anyone to fall into the trap that is the criminal justice system. Please don’t give them more of your time or money. However, these are all very real questions that seem to place current laws on their head. I’m told that if you can prove reasonable doubt, are acquitted and found “in fact” innocent, you may be able to recoup attorney’s fees and other costs. This places enormous liability on the officers, as well as the prosecutors that decide to charge cases. We’re talking widespread arrests for perfectly lawful actions across the nation.= This is a problem, and there’s only one solution: stop arresting people for plants.

Legal Pot is a Real Thing Across the US
One of the most fascinating results of our removal of hemp from the CSA was the legalization of Delta 9 THC. Yes, you heard it right. Legal THC. Although new cannabinoids are all the rage, 10-20mg Delta 9-THC drinks and gummies are being mailed all over the US, and the USPS is, for now, on board with allowing mailing. Through our conversations with attorneys from the USPIS, they have repeatedly confirmed that mailing Delta 9-THC is lawful, so long as it meets the criteria of <.3% by dry weight. This has reached a new level with creativity. If a gummy weighs 3g and contains 10mg of Delta 9-THC, it’s technically .3%. The same seems to be applied to beverages, as we know liquids are dense substances. There are at least five major distributors that currently have very legitimate businesses based on this model. They have even figured out the supply chain. A manufacturer-to-manufacturer transfer is allowed with THC, so long as the manufacturer intends to make them into a compliant product. This means that a lab that handles THC remediation, which has a stockpile of THC, can ship to another hemp products manufacturer, so long as the receiving licensee makes it into products containing <.3% Delta 9- THC like the above examples. I know this is a lot to take in, and it almost seems surreal. This occurs while novel isomers and analogs such as HHC, THC-p, THC-o acetate, and THCv take the front stage. All of these are mood-altering but deemed lawfully derived from hemp. The avalanche of cannabis is picking up mass and speed, and there is no discernable way to stop it. Even the appellate court recently found that Delta 8 and other isomers derived from industrial hemp are lawful and not subject to the Controlled Substances Act, pursuant to the agricultural marketing act of 1964 (via the 2018 Farm Bill).

Change is Here
This is chaos, but it is changing. Regulators are trying to understand something binary by applying quite a bit of unnecessary effort to the wrong areas. One official in Washington even proposed jurisdiction and taxation of any derivative of any Cannabis plant that is pleasurable when consumed (seriously). Hemp is not a controlled substance, no question. However, regulators see revenue, politicians see votes, and law enforcement sees a loss of funds for marijuana enforcement. They are scared to do the right thing, so we went ahead and did it for them. By developing hemp, a more palatable cannabis for a more conservative crowd, we have progressed all cannabis, even marijuana. Once a law becomes unduly overcomplicated and inapplicable, it is challenged. This is the beginning of winning the war on cannabis. This is the De facto legalization of cannabis, all because of a plant that should have never been made illegal in the first place. So, thank your local hemp farmer, marijuana industry entrepreneur, and everyone else involved for taking a huge risk and potentially losing big. Thank them because, without all of that, cannabis wouldn’t be where it is today. Most didn’i realize the gravity of what they were doing (shaping laws, undoing a century of injustice, and a growing pursuit of happiness), but the progress they made was noticed by many and will continue to be for generations. Hemp is not marijuana, but cannabis is cannabis. And cannabis is looking more lawful than ever.

Chris Girard

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