Table of Contents
“When you’re putting these things into the stream of commerce and you look at the 10th Amendment, there’s really nothing in the U.S. Constitution that says that we can’t clearly legislate this type of issue.”
By Rebecca Rivas, Missouri Independent
A Republican state senator, Senator Nick Schroer, hailing from O’Fallon, has recently introduced legislative measures aimed at reviving a previous but unsuccessful attempt from last spring. The primary focus of these proposed regulations is to address the growing concern surrounding intoxicating hemp products in the state of Missouri, specifically targeting items infused with Delta-8 THC, including beverages and edibles.
The sale of Delta-8 THC products is currently permitted in Missouri, largely because the key intoxicating component, THC, is derived from hemp rather than cannabis, which remains a controlled substance. Hemp, by contrast, enjoys federal legal status. Notably, neither state nor federal regulations explicitly prohibit teenagers or children from purchasing these products, nor do they impose restrictions on stores or vendors regarding the sale to minors. However, it is worth noting that certain stores and vendors have voluntarily chosen to implement age restrictions, permitting sales only to individuals aged 21 and older.
Furthermore, there exists no mandatory requirement to include comprehensive information about potential effects on product labels, nor is there a strict mandate for rigorous THC content testing. Senator Schroer has expressed deep concern over the accessibility of these products to children, especially teenagers, citing instances where constituents have reported incidents of their children requiring hospitalization due to their exposure to these intoxicating hemp products.
In light of these concerns, Senator Schroer’s proposed legislation aims to address the regulatory gaps and potential risks associated with the availability and sale of Delta-8 THC-infused items. This renewed effort seeks to establish a comprehensive framework that will address issues of accessibility to minors, labeling requirements, and thorough product testing, with the overarching goal of safeguarding the well-being of young individuals within the state of Missouri.
Missouri’s Proposed Legislation on Delta-8 THC Regulation
Senator Nick Schroer’s proposed legislation presents a comprehensive plan for addressing the regulation of intoxicating hemp products in the state of Missouri, particularly focusing on items infused with Delta-8 THC, such as edibles and beverages. The legislation outlines several key provisions that aim to address the current regulatory gaps and potential risks associated with these products.
Under this bill, the responsibility for regulating these intoxicating hemp products would be entrusted to the Missouri Department of Health and Senior Services (DHSS). This agency, which presently oversees the state’s cannabis program, would play a central role in establishing and enforcing regulations surrounding Delta-8 THC products. Additionally, the bill proposes that these products must be exclusively sold through DHSS-licensed dispensaries, creating a controlled and regulated distribution channel.
State Representative Chad Perkins, a fellow Republican from Bowling Green, has introduced a companion bill in the House, reflecting bipartisan concern for the issue at hand.
While the DHSS does not take official positions on proposed bills, DHSS spokeswoman Lisa Cox has acknowledged the growing public health impact associated with unregulated THC products. Notably, over recent years, there has been an observable increase in incidents involving children requiring hospitalization due to cannabis exposure. As a result, the department has intensified its focus on implementing regulatory mechanisms to safeguard public health, particularly with a focus on protecting children. Currently, there exists no protective framework for unregulated THC products, highlighting the urgent need for comprehensive regulation.
Sean Hackman, President of the Missouri Hemp Trade Association, has expressed his organization’s support for measures that prioritize the safety and responsible use of intoxicating hemp products. These measures include prohibiting sales to minors, mandating clear and comprehensive user instructions, and implementing rigorous product testing. Hackman emphasizes that while reports of overdoses, especially those involving minors, are deeply concerning, they do not constitute a public health emergency but rather underscore the opportunity for enhanced and improved regulation in the industry. This legislation, therefore, seeks to provide a robust and protective framework to mitigate potential risks associated with Delta-8 THC products and ensure the well-being of Missouri’s residents, particularly its youth.
Hemp-Derived Industry Opposition Mounts Against Proposed Missouri Regulatory Measures
The Missouri Hemp Trade Association has voiced its opposition to the proposed legislation, firmly contesting the notion of entrusting the Department of Health and Senior Services (DHSS) with regulatory authority over these products and mandating their exclusive sale through licensed dispensaries. It is a stance rooted in concerns about the potential implications of such regulations.
Notably, a similar bill introduced by Republican State Representative Kurtis Gregory of Marshall faced hurdles during the previous legislative session, becoming ensnared in committee discussions. At that time, during a hearing on the bill, lawmakers from both the Republican and Democratic parties raised objections to the idea of subsuming the hemp industry within the purview of DHSS. Their apprehensions centered around the possibility of the “cannabis monopoly” seizing control of this burgeoning market, given the restricted number of licenses available for dispensaries.
This apprehension has its roots in the competitive frenzy for licenses that unfolded after voters passed a constitutional amendment legalizing medical cannabis in 2018. The state had imposed caps on the number of applications it would approve, initially granting 338 licenses for the sale, cultivation, and processing of cannabis. This regulatory environment led to widespread reports of irregularities in the scoring of applications, sparking criticism of the industry and allegations that certain insiders were exploiting the system to establish a monopoly. These concerns persisted throughout the campaign to legalize recreational cannabis last year, despite the proposal ultimately gaining voter approval.
In a bid to navigate these regulatory challenges, some applicants who were unsuccessful in securing medical cannabis licenses pivoted to the production of hemp-derived THC products as an alternative avenue.
Another prominent concern raised by critics relates to the federal legality of hemp. Given that hemp is federally legal, incorporating it into a regulatory framework that governs controlled substances could potentially expose the state to legal disputes and lawsuits.
Senator Nick Schroer, the proponent of the legislation, has indicated that he will closely monitor the unfolding legal case involving Delta Extraction, a cannabis manufacturer based in Robertsville. Delta Extraction had its cannabis product manufacturing license revoked in November, following a massive product recall that removed more than 60,000 items from the market. The state alleged that these products were illegally manufactured using a hemp-derived THC concentrate imported from out of state. This ongoing legal case underscores the complexities and legal challenges surrounding the regulation of hemp-derived THC products and the broader cannabis industry in Missouri.
While hemp enjoys federal legality, a contentious debate has emerged concerning the jurisdiction of state regulators when it comes to the regulation of hemp-derived THC within the realm of cannabis.
The Administrative Hearing Commission is currently grappling with the pivotal question of whether Missouri regulators possess the authority to prohibit licensed entities from infusing Missouri-grown cannabis products with hemp-derived THC. The result of this legal dispute will have a profound impact on the future regulatory framework within the state.
Should Delta Extraction not succeed in its appeal before the commission, it intends to continue its legal fight. The company’s legal representatives have underscored their belief that the state lacks the jurisdiction to regulate hemp products in any capacity. Chuck Hatfield, an attorney representing Delta Extraction, articulated this viewpoint in a recent correspondence to the department, asserting that the Division of Cannabis Regulation’s regulatory purview is confined to non-hemp cannabis, independent of its utilization in THC production.
Senator Nick Schroer, the proponent of the proposed legislation, has pledged to take into account the court’s eventual ruling in the Delta Extraction case when crafting the legislation. His objective is to formulate a legal framework that aligns with established case law, prioritizes the protection of the state’s youth, and safeguards the well-being of consumers of these products.
It is noteworthy that a significant legal precedent was set in September when a federal judge in Arkansas ruled in favor of hemp companies. This ruling resulted in the granting of a preliminary injunction against a state law, closely resembling the one proposed by Senator Schroer and Representative Perkins, aimed at regulating hemp-derived THC. U.S. District Judge Billy Roy Wilson emphasized that if Arkansas aspires to partake in the federal hemp program, it must adhere to the program comprehensively, refraining from selective implementation of its provisions.
Despite this preliminary court decision in Arkansas, Senator Schroer remains resolute in his conviction that the federal government does not possess the authority to preclude state legislators from enacting legislation about the regulation of intoxicating cannabinoids. He contends that when products enter the stream of commerce and the principles of the 10th Amendment are considered, there is no constitutional basis preventing the clear legislative regulation of such issues at the state level.
