Will whetting your whistle with rogue intoxicants be cannabis’ next jackpot?

Falling outside of the Controlled Substance Act, 21 U.S.C. §§ 801, Et. Seq (1970) (CSA) narrow marijuana definition, alternative and synthetic forms of the intoxicant tetrahydrocannabinol (THC) are flooding the market and gaining traction in cannabis consumables like infused beverages. 

Although impending federal legislation prohibiting alternative and synthetic THC may close this loophole, Minnesota’s intoxicating beverage sales indicate a tidal wave of infused drinks is about to drench the nation. 

Cannabis, delta-9-THC and edibles dosage

Comprised of three plants containing 120 constituent elements, cannabis’ most lucrative component is the intoxicant THC.

Specifically, marijuana is defined as “Cannabis sativa L. containing less than 0.3% plant chemical Delta-9 THC” by the CSA and regulations promulgated thereunder by the Drug Enforcement Agency (DEA). Listing it next to heroin as a Schedule I controlled substance having “a high potential for abuse” and for which there’s “no currently accepted medical use in treatment” and “a lack of accepted safety for use” “under medical supervision”, the CSA renders marijuana 100% federally illegal. 21 U.S.C. §812(b)(1).

The CSA prohibits marijuana’s cultivation, distribution, dispensation and possession, and pursuant to the U.S. Constitution’s Supremacy Clause, state laws conflicting with federal law are generally preempted and void. U.S. Const., Art. VI, cl. 2; Wickard v. Filburn, 317 U.S. 111, 124 (1942). Those cultivating, processing, infusing, transporting or dispensing cannabis are deemed to be “plant-touching” marijuana related businesses (MRBs) and subject to the CSA’s onerous penalties.

Despite federally illegality, delta-9-THC cannabis is legal in 38 American states purchasable in two forms: medical (with a state-issued card to treat residents’ statutorily defined “covered medical condition”); or adult-use (by anyone over 21 from any state with a valid identification). Because the CSA prevents cannabis from being sold outside of each respective legalized-marijuana state, and thus, no “interstate Cannabis commerce” can occur, state regulators like Minnesota’s Office of Cannabis Management, and not federal agencies like the Food and Drug Administration (FDA), issue licenses and regulate MRBs.

Cannabis is taken four ways: 

• Flower that is smoked
• Oils ingested by vaporizing
• Concentrates consumable after being heated to a high temperature
• Infused products ranging from eye drops to edibles (ex., gummies, mints, brownies, cookies, and drinks).

An edible’s dosage is measured by the cannabis product’s milligrams of delta-9-THC, ranging from: 

• Microdose: 1-2.5 mg
• Low dose: 3-5 mg
• Moderate dose: 10-15 mg 
• High dose: 20-30 mg
• Acute dose: 50-100 mg
• Macrodose: 100-500 mg

Rogue intoxicants – hemp-derived THC’s murky legality

Mirroring delta-9-THC’s effects, hemp-derived THC requires no license, is readily available online and over-the-counter, and pilfering legalized cannabis’ revenue despite growing state illegality, confusion over federal legality, and concerns regarding these untested and unregulated products’ safety and potency.

A fast-growing, sustainable and inexpensively produced plant, hemp is a variety of Cannabis sativa L. containing less than 0.3% delta-9-THC. Agricultural Act of 2014, 7 U.S. Code §5940. Hemp yields more than 25,000 oil and fibrous products, including cannabidiol (CBD), which offers broad health and wellness uses, serves as a food additive and is contained in many beauty items.

The Agriculture Improvement Act of 2018 (2018 Farm Bill) both legalized hemp and its derivatives and removed plant Cannabis sativa L. containing no more than 0.3% delta-9-THC on a dry-weight basis from the CSA and DEA's purview. 7 U.S.C. §1639o(1).

Passed every five years, and forming the federal government’s primary agricultural and food policy instrument, the Farm Bill permits importing, exporting and transporting hemp and hemp-derived products like any other crop, and tasks the United States Department of Agriculture (USDA) with promulgating hemp regulations, and charges states, territories and Indian tribes with submitting hemp-growing regulations plans to the USDA including "THC testing procedures”. Id.

A cannabinoid of the THC family of compounds commonly derived from the cannabis plant, delta-8-THC is a double bond isomer of delta-9-THC. An isomer is a type of chemical analog comprising one of two or more compounds containing the identical number of atoms of the same elements but differing in structural arrangement and properties. There are 30 known THC isomers, and delta-9-THC and delta-8-THC differ regarding the single double bond’s location. Stated another way, while similar in molecular structure, delta-8-THC is a different molecule than delta-9-THC.

Delta-8-THC is derived either directly from the hemp plant or converted from the CBD isolate. Because hemp cultivars do not express delta-8-THC in sufficient concentrations or quantities to be economically viable for commercial extraction purposes, and CBD is cheap and abundant, deriving delta-8-THC by converting from CBD isolate is the faster, cheaper and more popular method.

Similar to delta-8-THC, delta-6-THC, delta-10-THC and THCv (hereafter, collectively referred to as “rogue intoxicants”) are hemp-derived THC which are not federally illegal and often require no license, less regulated and cheaper than delta-9-THC.

At the state level, rogue intoxicants’ status is:

Legal: Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Maine, Maryland. Massachusetts, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma (explicitly excludes delta-8 from marijuana’s legal definition), Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Washington D.C., West Virginia, Wisconsin and Wyoming

Illegal: Alaska, Colorado, Delaware, Idaho, Iowa, Montana, Nevada, New York, North Dakota, Oregon, Utah, Vermont and Washington 

Legal But Restricted or Regulated: 

• Arizona
• California (products with more than 0.3% delta-8-THC are state regulated)
• Connecticut (only purchasable from a licensed cannabis retailer) 
• Hawaii (except for edible/inhalable products including gummies, vape, flower and drink, delta-8-THC is legal
• Louisiana (while barring inhalables like flowers and vapes, consumable delta-8 products like tinctures and gummies up to 8 mg THC per serving allowed)
• Michigan (only purchasable from licensed cannabis retailer)
• Minnesota (delta-8 plants may contain up to 0.3% of any THC type and consumables up to 5 mg THC/serving allowed)
• Rhode Island
• Virginia (except for food/drink THC-containing product)

Because the 2018 Farm Bill’s hemp definition encompasses cannabinoids and derivatives of hemp, hemp-derived rogue intoxicants are probably not prohibited by the CSA and rogue intoxicants derived from CBD are probably also exempt (if not containing delta-9-THC concentrations exceeding “0.3% by dry weight” legal limit).

However, a proposed 2024 Farm Bill amendment would federally prohibit all rogue intoxicants. Specifically, on May 24, the House Agriculture Committee passed a new Farm Bill including an amendment stating that hemp does not include hemp-derived products containing cannabinoids that:

• “are not capable of being naturally produced by a Cannabis sativa L. plant”
• “were synthesized or manufactured outside the plant”
• “have similar effects (or are marketed to have similar effects) on humans or animals as tetrahydrocannabinol” (“Miller Amendment”)

On June 11, the House Agriculture, Rural Development FDA subcommittee passed an appropriations bill including language mirroring the Miller Amendment.

Thus, if passed with the Miller Amendment, the 2024 Farm Bill will narrow hemp’s definition rendering all rogue intoxicants to be 100% federally illegal cannabis. Further, by federally banning all ingestible hemp products with any quantifiable THC level, the proposed Miller Amendment would prohibit 90-95% of all hemp products on the market, even a large majority of popular, non-intoxicating CBD products naturally containing trace, non-intoxicating THC amounts.

Minnesota’s rogue intoxicant beverage explosion

In a devastating one-two punch, Minnesota both became ground-zero for demonstrating cannabis infused beverages’ insane popularity and scalability and indicating what the nation’s next marijuana trend will be.  

First, commencing on July 1, 2022, Minnesota lawmakers authorized rogue intoxicant edibles and beverages containing no more than 5 mg per serving. While unclear if this was the legislature’s intent or just imprecise drafting, a frenzy ensued in which Minnesota breweries and cideries began creating low-dose rogue intoxicant drinks. Breweries quickly put out hemp seltzers in a variety of flavors and THC concentrations, which, unlike beer or cider, don’t require time for fermentation and are fairly easy to make.

After being extracted from hemp, the THC is processed into a water-soluble emulsion and blended with fruit juices and carbonated water, then tested for potency. Because the THC is evenly distributed throughout each 5 mg low-dose serving, the intoxicating effect come on faster but more evenly than other cannabis consumption forms and quicky gained footing with Minnesotan consumers.

Over the ensuing two years, hemp-derived rogue intoxicant beverages became a fixture at Minnesota bars, liquor stores and restaurants. Further, this groundbreaking law allowed hemp-derived THC beverage sales in mainstream retail outlets like grocery and convenience stores (which are distribution channels denied to medical and adult-use markets). Major retailers such as Cub Foods and Total Wine began stocking rogue intoxicant beverages, instantly legitimizing the products and showcasing them to the ideal consumers; beer, wine and spirit drinkers.

Second, effective Oct. 2, 2023, Minnesota authorized adult-use cannabis, requiring all rogue intoxicant beverage sellers (including liquor stores) to register with the state before selling any hemp-derived cannabinoid product. Because Minnesota’s adult-use cannabis sales are not expected until 2025, this authorization further legitimatized rogue intoxicant beverages and provided them a head start over non-medical cannabis drink sales.

While Minnesota’s rogue intoxicant loophole may close, prohibition may ensue from the 2024 Farm Bill’s more restrictive hemp definition, and federal cannabis legalization is looming (and will undermine rogue intoxicants’ market share), the writing is on the wall.

THC-infused beverages are among the most popular THC consumables, easy to launch and scale by existing breweries and cideries and posed to take the nation by storm.