Police in Allen, Texas, secured up evidence and marched out business owners in handcuffs for selling what attorneys for the vape shops say are legal products. In a coordinated raid, police invaded nine locations simultaneously.
Allen police chief Steve Dye told media that the stores involved, more than a third of the vape shops within Allen city limits, were all caught marketing and selling products with illegal levels of THC. The THC compound can be derived from marijuana and hemp (both members of the cannabis family).
“We did multiple rounds of undercover operations, including sending minors in, and many of them were able to buy the THC underage. And then we started testing those products and we found that the vast majority of those products were well over the .3 percent,” he said.
Early Wednesday morning, an attorney representing some of the vape shops in a federal lawsuit against the DEA called the raids “legally questionable.”
“These local, family-owned businesses are operating legally. The Allen, Texas Police Department and the DEA overstepped their authority by destroying products, taking point-of-sale systems and records, and confiscating personal computers belonging to employees,” said David Sergi of San Marcos-based Sergi & Associates.
Pictures provided by the U.S. Drug Enforcement Administration, which assisted with the raid, show a bag of chips labeled “Doweedos”, cookies labeled “Trips Ahoy” and candy labeled “Medicated Skittles.”
“We’ve seen percentages of THC in the high teens, upwards of 60, 65 percent. That is almost toxic levels of THC when you think about it. And is that what somebody is expecting to get?” asked DEA Special Agent In Charge Eduardo Chavez.
The raids left owners and employees “traumatized,” according to Sergi, who also represents the Allen Hemp Coalition as well as eight of the nine shop owners. “We think it’s absolutely horrendous,” he told a media oulet.
Sergi said that when police sent a letter to businesses in May raising concerns, the stores voluntarily removed the products mentioned from their shelves. This time, he said, police chose a different approach.
“Rather than getting guidance and partnership from the Allen Police Department, we have gotten arrested, we have had clients whose stores have been destroyed, we have employees whose computers have been taken,” he said.
Sergi said that while there’s no law against selling hemp products to minors, many shops voluntarily choose not to.
When asked about the attorney’s comments, a spokesperson for Allen police said the department tried working with store owners, offering to provide advice about which products might pose a problem. Not all, he said, took them up on it.
A bipartisan group of 20 state attorneys general are imploring Congress to take action to address a looming public health “crisis” due to the burgeoning multibillion-dollar market for intoxicating hemp products.
Congress legalized hemp under the 2018 farm bill, touting it as a boon for struggling farmers. However, the market has become increasingly dominated by what some call “intoxicating products” that are largely unregulated and often sold at gas stations and convenience stores.
“The reality is that this law has unleashed on our states a flood of products that are nothing less than a more potent form of cannabis, often in candy form that is made attractive to youth and children — with staggering levels of potency, no regulation, no oversight, and a limited capability for our offices to rein them in,” reads the letter, shared exclusively with POLITICO, which was sent to the chairs and ranking members of the House and Senate agriculture committees.
Indiana Attorney General Todd Rokita and Arkansas Attorney General Tim Griffin, both Republicans, led the letter. But it also includes many notable Democrats, including California Attorney General Rob Bonta and Colorado Attorney General Philip Weiser.
The attorneys general are calling on federal lawmakers to address the issue in the next farm bill, which has been repeatedly pushed back potentially to 2025. They want Congress to alter the definition of hemp under federal law—currently cannabis with no more than 0.3 percent Delta-9 THC—although they don’t provide any specific recommendations for how it should be changed. In addition, they want federal lawmakers to clarify that states have the authority to regulate and restrict hemp and other cannabinoids.
Attorney General William Tong today filed seven new enforcement actions against wholesalers and retailers engaging in the distribution and sale of potent, illicit cannabis products in Connecticut.
Wholesalers include Shark Wholesale Corp. in Bridgeport, Star Enterprise 74, LLC, in New Britain, and RZ Smoke, Inc., in Suffield. The four retailers are Greenleaf Farms in New London, Smoker’s Corner in Norwich, Anesthesia Convenience & Smoke in New Haven, and Planet Zaza in East Haven.
In each instance, the Office of the Attorney General is alleging violations of the Connecticut Unfair Trade Practices Act, which carries fines of up to $5,000 per violation, according to press release.
“Cannabis is legal for adults in Connecticut, but it’s not a free-for-all—retailers must be licensed and legal cannabis products must comply with strict safety standards. Today, we are suing seven businesses—three wholesalers and four retailers– who have sold potent, high-THC cannabis products in violation of Connecticut laws,” said Tong. “None of these products have been subject to Connecticut’s rigorous testing standards or contain appropriate warnings.
Connecticut Attorney General William Tong
“Some are sold in dangerous and misleading packaging designed to appeal to children. These products are designed to deceive consumers into believing they are safe, tested, and regulated—that is false. We have multiple active investigations into additional retailers and wholesalers, and we will keep the heat on so long as these dangerous, illegal products are sold.”
Residents over age 21 can legally possess and consume cannabis in Connecticut. Cannabis products may only be sold in the regulated market and must meet rigorous testing and packaging requirements. Cannabis products sold outside of the regulated market continue to be illegal and may subject sellers to civil and criminal penalties.
Despite that, the sale of illegal delta-8 and delta-9 cannabis products and other high-THC cannabis products continues in Connecticut, according to Tong.
In unannounced visits to vape shops and gas stations, investigators from the Office of the Attorney General and the Department of Consumer Protection continue to routinely find illegal cannabis products for sale, including blunts, marijuana flower, and edibles mimicking popular youth-oriented snack foods, including Fritos, Skittles, Airheads, and more.
Illegal look-alike cannabis products pose a unique health threat to children, who may unknowingly ingest high doses of potent psychoactive chemicals. In the regulated adult-use market, edible cannabis products may only be sold in containers that contain a maximum of 100 milligrams of total THC and 5 milligrams of total THC per serving size. Children who accidentally eat an entire snack-sized bag of “chips” or “candy” may be exposed to more than 100 times the maximum adult serving.
Since 2021, the Connecticut Poison Control Center has received 400 calls regarding cannabis exposure in children, including 181 children under the age of 6 exposed to cannabis edibles. The majority of those cases required treatment at a health care facility.
Greenleaf Farms New London
Greenleaf Farms is a CBD retailer in New London with no license to sell cannabis products in Connecticut. Despite that, investigators from both the Department of Consumer Protection and Office of the Attorney General on multiple visits discovered numerous illegal high-THC products for sale, including potent edibles designed to look like children’s cereal. Greenleaf Farms also offered for sale marijuana “blunts,” which were offered in various THC concentrations.
The products lacked a variety of required warning statements and labels, and do not appear to be produced by licensed facilities or tested in accordance with state law.
Further, Greenleaf Farms represented itself as a licensed dispensary in the sign shared below despite lacking such a license.
Smoker’s Corner
Smoker’s Corner is a smoke shop in Norwich with no license to sell cannabis products in Connecticut. During multiple visits, an investigator from the Office of the Attorney General observed illegal high-THC edibles for sale. Further, after the investigator asked if there was any “pot” available for purchase, a Smoker’s Corner employee retrieved a mason jar full of marijuana flower from a back room. The employee then weighed the marijuana on a scale, bagged it, and sold it to the Office of the Attorney General’s investigator. The cannabis products lacked required warnings and labels, did not appear to be produced by licensed facilities or tested in accordance with state law, according to Tong.
Anesthesia Convenience & Smoke
Anesthesia Convenience & Smoke is a smoke shop in New Haven that is not licensed to sell cannabis in Connecticut. On multiple unannounced visits, investigators from the Department of Consumer Protection and Office of the Attorney General observed thousands of high-THC products, including those more potent than any product available in the regulated cannabis market. Products included potent edibles, as well as marijuana flower. The cannabis products lacked required warnings and labels, did not appear to be produced by licensed facilities or tested in accordance with state law, according to Tong.
Planet Zaza
Planet Zaza is a smoke shop located in East Haven with no license to sell cannabis in Connecticut. Investigators with the Department of Consumer Protection and Office of the Attorney General inspected the store on multiple dates, finding numerous high-THC cannabis edibles for sale more potent than any authorized for sale in Connecticut.
Further, investigators discovered unauthorized labels, including fake prescription labels falsely indicating that the store is a licensed dispensary and that the illegal products were medical-use cannabis. The products did not appear to be produced in a licensed facility or tested in accordance with state law, according to Tong.
Wholesalers: RZ Smoke, Star Enterprise, and Shark Wholesale
Star Enterprise is a New Britain-based smoke and vape wholesale business. Shark Wholesale is based in Bridgeport. RZ Smoke is a New York-based smoke and vape wholesale business with a warehouse in Suffield. These wholesalers each supply illicit cannabis products to retailers throughout Connecticut. All three provide products packaged in a manner that deceives consumers into reasonably believing they are purchasing cannabis products from Connecticut’s legal, regulated market. In fact, each wholesaler offered highly potent products far in excess of allowable serving sizes and THC levels.
Star’s products contained THC levels 35-times the maximum permissible in Connecticut’s regulated cannabis market, as well as serving sizes at least five times the maximum allowed. Further, the packages were labeled in such a way as to appeal to youth, including brand names and packaging identical or similar to non-cannabis snacks. Shark’s products contained THC levels 15-times the maximum limit, and serving sizes six times the maximum legal serving size. RZ Smoke’s products contained THC levels 10-times the maximum allowed, with serving sizes five times over the legal limit. Their products were also designed to mimic existing names and packaging of non-cannabis snacks, according to Tong.
Ongoing Cannabis Enforcement Actions
“Today’s filings follow a series of enforcement and educational actions taken by Attorney General Tong to combat the sale of illegal cannabis in Connecticut, including high-THC delta-8 and delta-9 edibles. Last year, Attorney General Tong sent warning letters to all Connecticut licensed retailers of electronic vaping products advising them that sale of delta-8 THC by unlicensed retailers may be illegal,” the release states.
The Office of the Attorney General now has 10 pending enforcement actions, and has secured judgments against four additional Connecticut retailers totaling $40,000 for alleged violations of the Connecticut Unfair Trade Practices Act over the sale of illegal delta-8 THC products.
A portion of the payments will be suspended if the retailers comply with terms of the judgment, including ceasing all sales of illegal cannabis. Additional investigations are active and ongoing. Last week, Tong issued a cease and desist letter to HighBazaar organizers that its unlicensed cannabis marketplace appears to violate multiple state statutes. An additional letter was sent to the Masonic Temple Day Spring Lodge in Hamden, which currently hosts the market, according to Tong.
The U.S. DEA says cannabis-derived delta-9 THCA does not meet the definition of hemp under the CSA.
By Rod Kight
The U.S. Drug Enforcement Administration (DEA) issued a letter1 on June 9, 2023, in response to a request about information regarding, among other things, tetrahydrocannabinolic acid (THCA). Note that I was only able to locate a copy of the letter on Reddit. I had to compile a series of PNG images of it into a single document. I believe, but cannot confirm, that the letter is in response to an inquiry by Vice Media Group.
In the letter, the DEA states the following about THCA:
“In regard to delta-9 THCA, Congress has directed that, when determining whether a substance constitutes hemp, delta-9 THC concentration is to be tested ‘using post-decarboxylation or other similarly reliable methods.’ 7 USC § 1639p(a)(2)(A)(ii)2; 7 USC § 1639q(a)(2)(B).3 The “decarboxylation” process converts delta-9 THCA to delta09 THC. Thus, for the purposes of enforcing the hemp definition, the delta-9 THC level must account for any delta-9 THCA in a substance…. Accordingly, cannabis-derived delta-9 THCA does not meet the definition of hemp under the Controlled Substances Act because upon conversion for identification purposes as required by Congress, it is equivalent to delta-9 THC.”
Rod Kight
Is the DEA right?
The answer is “it depends.” If the DEA is addressing the legal status of hemp that is in production (i.e., pre-harvest hemp), then it is correct. As I have previously discussed,4 all hemp must pass a “post-decarboxylation” test, commonly known as a “total THC” test, in order for it to be harvested. However, for hemp that is postproduction, i.e., hemp that has passed a post-decarboxylation test and been harvested, the sole legal metric for determining its legal status is its delta-9 THC levels. In other words, if we read the DEA’s letter to contend that postproduction hemp is subject to a post-decarboxylation test, then it is wrong.
The post-decarboxylation test does not apply to postproduction hemp. The two statutes cited by the DEA in its letter are the only two places in the Agriculture Improvement Act of 2018, commonly known as the 2018 Farm Bill, that the term “post-decarboxylation” appears. They both apply solely to hemp production.
In the first statutory provision, 7 USC § 1639p(a)(2)(A)(ii), Congress sets forth the criteria that states and Indian tribes must comply with in order to “have primary regulatory authority over the production of hemp” within their jurisdictions. The second statutory provision, 7 USC § 1639q(a)(2)(B), is similar in that it sets forth the criteria that the U.S. Department of Agriculture (USDA) shall use to “monitor and regulate [hemp] production” in states that do not have an approved hemp plan and thus do not have primary authority over hemp production within their jurisdictions (state and tribal hemp plans are available at www.ams.usda.gov/rules-regulations/hemp/state-and-tribal-plan-review).
The key word in the above provisions is “production.” In law, we refer to a word with a specific and defined legal meaning as a “term of art.” In the context of hemp, “production” is a legal term of art. Under 7 CFR § 990.1,5 to “produce” means “To grow hemp plants for market, or for cultivation for market, in the United States.” Additionally, 7 CFR § 718.26 defines a “producer” as “an owner, operator, landlord, tenant or sharecropper who shares in the risk of producing a crop and who is entitled to share in the crop available for marketing from the farm or would have shared had the crop been produced. A producer includes a grower of hybrid seed.” To produce hemp means to grow it.
Since the post-decarboxylation test clearly applies to producers, the DEA is correct when it states that “for the purposes of enforcing the hemp definition, the delta-9 THC level must account for any delta-9 THCA.” A hemp producer’s crop must not have total THC concentrations exceeding 0.3 percent by dry weight in order to harvest it. However, once that crop passes the test and is harvested, no additional test is required under federal law.
“At that point, meaning post-harvest, the sole statutory metric under federal law for determining whether harvested cannabis material is lawful hemp or illegal marijuana is its delta-9 THC levels. In fact, the DEA stated this very clearly in a letter dated January 6, 2022:7 “[T]issue culture or any other genetic material that is derived or extracted from the cannabis plant such as tissue culture and any other genetic material that has a D9-THC concentration of not more than 0.3 percent on a dry weight basis meets the definition of “hemp” and thus is not controlled under the CSA.”
This was not the first time the DEA said that Delta-9 was the sole factor. During a video webinar8 called a “Town Hall with USDA and DEA” conducted by the Florida Department of Agriculture and Consumer Services on June 24, 2021, the DEA representative stated: “I’ll be very, very deliberate and clear. At this time, I repeat again, at this time, per the Farm Bill, the only thing that is a controlled substance is delta-9 THC greater than 0.3 percent on a dry weight basis.”
The 9th Circuit Court of Appeals has also weighed in on this issue, stating: “[T]he only statutory metric for distinguishing controlled marijuana from legal hemp is the delta-9 THC concentration level.” 9
So, the DEA is right that Congress requires a post-decarboxylation test for hemp production. But, once hemp has been deemed to be compliant and allowed to be harvested, the “post-decarboxylation” test no longer applies. You may reasonably ask how a crop that passed a total THC compliance test could be harvested and have flowers with no more than 0.3 percent delta-9 THC but with high concentrations of THCA. I discuss that in a companion article.10
In summary, this DEA pronouncement is bound to create more confusion in an already confusing area of law; however, it should properly be read as simply restating the fact that hemp producers must comply with the total THC test in order to harvest their hemp. Post-harvest (i.e., postproduction), the 2018 Farm Bill’s definition of hemp clearly states that the delta-9 THC levels are what matter, not the levels of THCA.
Finally, I should note that the DEA also addressed other cannabinoids in its letter, including hexahydrocannabinol (HHC), which it finds to be an illegal synthetic form of THC that does not naturally occur in the cannabis plant. There is contrary evidence to this position, namely that HHC is naturally produced in cannabis seeds,11, 12 but that issue is for a future discussion.
Based in Asheville, NC, Rod Kight is a renowned attorney in the cannabis industry.
This article is not intended to be legal advice and should not be used as such. The matters discussed are novel and involve complicated and unsettled legal issues. Before making any decisions regarding THCA, you should first consult with an experienced attorney.
A federal judge in Kentucky has ordered a Laurel County sheriff to return hemp products and derivatives that were seized from a pair of stores. The judge found that the store owner is likely to succeed on his claims that they were unlawfully taken.
In an order filed last week, U.S. District Judge Claria Horn Boom said Joseph Bingham most likely has federal and state law on his side and his products were lawful, according to law360. She said Sheriff John Root must return what was seized in the February raid and is blocked from seizing similar products in the future.
According to the suit, Bingham operates two CBD stores and on and Feb. 25, Root and others from the Laurel County Sheriff’s Department raided those businesses and seized products containing delta-8 THC without a warrant.
While Root argued the products were in plain sight, Bingham alleged many of the products were in a back store room. There is also a dispute as to whether an employee at one of the stores consented to the search and seizure, according to the suit.
In the order, Judge Boom noted that the 2018 Farm Bill exempts hemp and its derivatives from the definition of cannabis that is listed in Schedule I of the Controlled Substances Act, and the Farm Bill specifically excludes THC in hemp and its derivatives, with courts finding that this depends on the delta-9 THC concentration.
