Cannabis Is Legal! Seriously

As a cannabis attorney, I’m often asked when cannabis will finally be
legalized, to which I always respond, “Cannabis has been legal for almost a
decade.” This response is often met with confused looks, but it’s true.
Congress first legalized “industrial hemp” in 2014. In response to the
rapid rise of the market for CBD and other cannabinoid products, Congress
dropped the “industrial” prefix and dramatically expanded the definition of
“hemp” in the 2018 Farm Bill to include the plant and all of its
“cannabinoids, extracts, derivatives, isomers” etc.

Contrary to popular belief, “hemp” *is* cannabis; it’s not a separate plant
species. In fact, the sole distinction between legal cannabis (hemp) and
illegal cannabis (marijuana) is the concentration of delta-9 THC. Cannabis
with more than 0.3 percent THC is marijuana. All other cannabis is hemp.
This distinction is mostly immaterial as evidenced by a growing national
market for consumer cannabis products, including ones that cause
intoxication.

Right now, Total Wine carries THC beverages and DoorDash delivers an array
of “hemp derived” cannabis products, such as flower, vapes, gummies as well
as THC drinks throughout many parts of the country, including in states
where marijuana is illegal. Many of my clients have direct-to-consumer
websites where they sell cannabis products, all made from legal hemp to
people throughout the US. One of my clients has even been called the
“Amazon of weed.” Notably, all of its products meet the federal definition
of hemp. Another client is one of the largest cannabis seed banks in the
world. It legally sells its seeds to consumers throughout the US so that
they can grow their own cannabis.

How can this be given the rhetoric about the need for “legalization” and
the apparently stalled efforts at rescheduling marijuana?

Let’s start with seeds. Cannabis is a plant and all cannabis products flow
from it. As I said above, hemp is cannabis. Since the sole legal
distinction between legal hemp and illegal marijuana is the concentration
of THC, cannabis seeds with no more than 0.3 percent THC are lawful hemp.
Importantly, the potential for a seed to grow into a plant with more than
0.3 percent THC is irrelevant to its legal status. This has been confirmed
by the DEA. As it turns out, no cannabis seeds contain more than 0.3
percent THC. This is because cannabis seeds don’t actually produce THC. The
THC they carry is the residue on their surfaces from touching other parts
of the plant, most of which is easily washed off. From a practical
standpoint, this means that *all* cannabis seeds are therefore lawful.

What about consumable THC products? It has long been assumed that in
legalizing hemp that Congress didn’t intend to create a market for
intoxicating products. Regardless of what Congress may have intended to do,
the expansive definition it created for hemp clearly paved the way for the
wide array of hemp-derived THC products that are sold throughout the US.
These include inhalables such as buds, prerolls, flower and vapes and
edibles including gummies, drinks, tinctures and various food products, all
of which have the capacity to cause intoxication. You might ask how this is
possible given that the THC limit for hemp is 0.3 percent. In other words,
how can you make an intoxicating product from hemp, which by law may only
contain a small amount of THC? The answer is that the limit is based on the
percentage of THC, and not the actual milligrams. For instance, a
hemp-derived THC gummy can easily contain 20 milligrams of THC—more than
sufficient to cause intoxication—while remaining within the 0.3 percent
limit. The same is true for drinks, vapes, tinctures and other consumable
product categories.

Hemp has emerged, perhaps unexpectedly, as the primary vehicle for full
cannabis legalization. While marijuana reform languishes, hemp has been
legal for more than a decade. During that time, products derived from hemp
have increased substantially to include many different categories and
formats. The market for these products has rapidly expanded, and many
well-known marijuana brands are pivoting into the hemp market. New
regulatory models are also emerging. The best ones are based on what I call
the “Three Pillars” approach. These pillars refer to appropriate
age-limits, safe manufacturing and proper labeling, all designed to ensure
that adults are able to make good choices about the safe cannabis products
they choose to consume.

As the battle for cannabis reform rages, and prohibitionists continue to
spread disinformation, hemp has demonstrated that a nationwide legal
cannabis market is both desired and viable. Hemp is cannabis and I strongly
encourage you to support pro-hemp bills in the US Congress and in your home
state.

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