Massachusetts Crackdown On Intoxicating Hemp Products Has Been Inconsistent, Critics Say

“Regulation makes everything safer and criminalization makes the products less safe.”

By Bhaamati Borkehetaria, CommonWealth Beacon

The state crackdown on hemp-infused intoxicating food and beverage products appears to be working at liquor stores and restaurants, but enforcement is more spotty at outlets regulated by local boards of health.

Near Union Square in Somerville, CommonWealth Beacon found two stores across the street from each other that were carrying hemp products that state agencies say are unlawful to sell.

The owner of one of the stores said he disagreed with that interpretation, noting that under federal law, hemp products are legal to sell. “Federal laws trump state laws,” said the owner, whose phone number was provided by an employee. The owner declined to identify himself.

The 2018 Farm Bill removed hemp from the definition of marijuana and deemed it an agricultural commodity, a shift that has led to the creation of an industry centered around many of the same intoxicating products found at marijuana dispensaries but without the heavy regulation on how it’s produced and who can consume it.

Hemp businesses argue that under federal law any product that has less than 0.3 percent THC—the intoxicating compound in cannabis—should be considered hemp and is therefore legal. However, state agencies in Massachusetts have said that these products aren’t legal under state regulations and federal law.

An advisory released in May by the Department of Public Health and the state Department of Agriculture made it explicit that hemp-derived THC and CBD are not allowed in any food products that are sold in Massachusetts, including gummies, chocolates and beverages.

The Alcohol Beverage Control Commission promptly notified liquor stores and restaurants they regulate that their liquor licenses could be revoked if they are caught selling hemp-derived products. A spokesperson for the agency said license holders have complied.

Already, several hemp beverage businesses have pulled out of Massachusetts. Adam Oliveri, the founder of Craft Collective, a beer distributor that also distributed hemp beverages, said that his business has withdrawn completely from selling intoxicating hemp beverages to liquor stores in Massachusetts.

“Once that [advisory] came out, it was reasonably clear guidance,” said Oliveri. “I felt that that was the right time to withdraw from the category. There is not going to be a market in the liquor store channel.”

The response has been less swift at gas stations and stores monitored by local boards of health, which often don’t have the resources to go store to store.

Two stores in Somerville continue to sell hemp-based products. On a recent weekday, Healing Hemp was displaying hemp plants outside while inside THC-infused hemp gummies were freshly tossed in sugar in a metal bowl just behind the counter before being put inside unmarked and unlabeled containers with white tops.

The gummies at Healing Hemp cost $25 for 25. There are scantily labeled pre-rolls that cost $8.99 and flower that costs $25 for 3.5 grams. There are promotions that offer discounts off of those prices.

Some of the packaging mentions the 2018 Farm Bill and states that the product hasn’t been “evaluated by the FDA.” The person behind the counter made it clear that these are indeed THC hemp products.

According to the state Department of Agriculture, unprocessed or raw hemp plant material like pre-rolled flower meant for consumers to use is prohibited even apart from the new advisory. The sale of live hemp plants is also prohibited.

The owner of Healing Hemp said he is in compliance with federal law on hemp products.

From his perspective, the fact that the federal farm bill leaves a loophole for hemp-derived THC products is enough to keep selling hemp products. He also said that reporting on the hemp industry is harmful to state businesses.

Across from Healing Hemp is 617 Smoke Shop, which also carries hemp pre-rolls and vapes in containers that make it clear that the products are compliant with the 2018 Farm Bill. The owner of 617 Smoke Shop could not be reached for comment.

Nick Antanavica, who oversees health inspectors in Somerville, said the city doesn’t have the resources to enforce the state advisory on hemp.

“Our inspectors have been instructed to enforce this based on response to complaints, but the city is not proactively enforcing as we do not have the staff availability to prioritize this over other pressing duties such as restaurant health inspections, housing safety inspections, trash and rodent complaints, and other areas requiring enforcement,” said Antanavica, in an email statement.

The board of health in the town of Whitman where these products are also easy to find—for instance, at the local gas station—gave a similar response.

“No form of additional funding [or] support has been provided to enforce this new mandate,” said Dan Kelly, the head of the Whitman Health Board, in an email. “The strategy moving forward is to check for these products during routine inspections. Whitman is a small town but it keeps our small department very busy. Every added task from the state or local level puts additional strain on the department.”

Kelly said that he has been manually going to stores where he has heard there are hemp products and letting those stores know that the products must be removed.

In Peabody, the board of health plans to adopt local regulations to enforce the ban on hemp-derived products.

Sen. Joanne Comerford (D-Northampton), who is vice chair of the Legislature’s Agriculture Committee and who organized an oversight hearing in June on the issue, said that there have been “tremendous advances” in dealing with these products since legislators started to pay attention. She has heard from constituents that hemp-derived products are coming off shelves.

Comerford also said that there is still more to do in order to address the issue.

“The hearing showed us some areas of significant vulnerability in terms of our ability to oversee and monitor,” said Comerford. “That is going to likely require legislation even though that hasn’t been determined yet.”

Adam Terry, the owner of Cantrip, a popular hemp beverage brand, said that his company doesn’t sell anything in Massachusetts at all anymore after the advisory went out.

Terry took issue with what he believes is inconsistent enforcement. He said that the state agencies’ advisory has actually taken safer and more tested hemp products like the hemp beverages his company makes off the shelves of liquor stores where age restrictions are enforced. However, he said products sold outside of liquor stores have not faced as much enforcement and those products might actually be less safe.

“The change in the marketplace has been essentially such that you can no longer find any quality hemp-derived THC products at safe places that sell to adults,” said Terry. “But you can find just as many, if not more, of the products that people are really mad about still in gas stations and convenience stores because liquor stores aren’t really selling them.”

Terry has previously argued that hemp products in Massachusetts should not be banned. Rather, he believes they should be regulated and tested.

Peter Grinspoon, a physician and cannabis specialist at Massachusetts General Hospital and an instructor at Harvard Medical School, thinks that banning the products could have an adverse effect.

“It’s difficult to know what to do because banning/prohibiting them just drives them further into the illicit market and makes them even more dangerous,” said Grinspoon. “We need to regulate them and study them — that is the best option in my opinion.”

Hemp industry advocates point to Minnesota as an example of a state where hemp-derived THC products weren’t banned but instead regulated. There, hemp-derived products can be bought widely and even enjoyed in breweries and restaurants. The state has packaging, maximum dosage, labeling, and testing requirements on the products.

Grinspoon, who has written about the dangers of unregulated hemp-derived products, thinks that Minnesota’s approach is better than an outright ban.

“[Minnesota’s approach is] definitely in the right direction,” said Grinspoon. “Regulation makes everything safer and criminalization makes the products less safe.”

Oliveri added that the issue of hemp-derived THC products in Massachusetts will not be addressed until a more responsible and comprehensive framework is put in place.

Ashley Randle, the agriculture commissioner, said at the Legislature’s oversight hearing that the federal government has left states in a difficult place. “The relative lack of federal regulation or enforcement of products containing hemp-derived cannabinoids raises concerns for public health and safety and the ability of consumers to make informed choices about the products they consume,” said Randle.

Terry argued that legalizing and regulating hemp products would yield another benefit: tax revenue. He pointed out that Minnesota has collected millions in tax revenue from hemp. This is partially because Minnesota legalized cannabis just last year and cannabis dispensaries are not yet open. Hemp products are the only intoxicating THC products that consumers can buy in Minnesota.

“If you had a system of regulating and taxing it here in Massachusetts as you did in Minnesota, then you’d be able to hire people to overcome the resource difficulty that everybody has been complaining about on the hill and go enforce and really get these out of the hands of kids and out of the hands of bad actors,” said Terry. “It’s kind of like watching people chasing their own tail, when the solution sits right in front of them.”

This article first appeared on CommonWealth Beacon and is republished here under a Creative Commons license.

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