Recently, Nevada Attorney General Aaron Ford led a bipartisan group of 23 attorneys general in a letter to congressional leadership detailing the dangers of unregulated cannabis products and urged immediate action to address certain tetrahydrocannabinol (THC) “copycat” products. THC is the active ingredient that is primarily responsible for the effects a person feels from using marijuana.
The letter was in response to a recent U.S. Food and Drug Administration advisory warning to the public about “copycat” edible cannabis products containing THC. These products resemble commercially available food products like Starbursts, Crunch Berries or Nerds Rope, but contain psychotropic or impairing elements, like THC, are untested and unregulated, and can cause illness.
The advisory described minors becoming ill, including one death, following the ingestion of a suspected Delta-8 THC edible.
The FDA warning, and subsequent attorneys general letter, underscore a critical issue that cannabis and hemp regulators across the nation have been grappling with recently.
Copycat products undercut comprehensive public health and safety measures that states like Nevada have worked to put into place as part of their well-regulated and legal cannabis marketplaces.
Where do these copycat products come from? Not from Nevada’s legal cannabis industry.
Nevada boasts one of the strictest regulatory regimes in the nation, with extensive rules and regulations surrounding all aspects of the cannabis industry, including prohibitions against any packaging and labeling that might look like commercially available products or that appeal to children.
Tyler Klimas
Additionally, like most legal cannabis markets, Title 56 of the Nevada Revised Statutes prevents any adulteration of commercially available products. That means our licensed operators cannot add THC or infuse it into an existing product like popular cereals or candy.
Any violation of these laws or regulations will jeopardize an operator’s license. These copycat products are coming from the illicit market; sometimes using products sourced from the global hemp market.
Legalizing cannabis for recreational or adult use has not totally eradicated the illicit market.
Illicit market participants do not have to follow the same rigorous production, packaging and testing standards as legal operators, and can sell cheaper products to minors and others.
Illicit market operations offer many of the same products as legal operators, such as edibles and vape devices, though they are untested and often made in unsanitary conditions.
If consumers of illicit market products knew they could be ingesting or inhaling dangerous mold and bacteria, unsafe pesticides, heavy metals and other dangerous additives, they might think again.
When hemp was broadly legalized in the United States for commercial purposes in 2018, the effort left a significant loophole in the definition of hemp. The definition only addressed a single type of THC called Delta-9, but failed to address other isomers like Delta-8.
When chemically derived from hemp, Delta-8 can be added into manufactured products like gummies and other edibles in high concentrations.
This loophole allows for illicit operators to create hemp-derived products or highly concentrated distillates and oils from hemp, specifically designed to get someone high. There is no regulation or scrutiny, products can be purchased online and, more important, there are no age-restrictions on their purchase.
These concentrates can then easily be added to commercially available foods or even made into copycat products that look like Starbursts, Crunch Berries or Nerds Rope.
During Nevada’s last legislative session, when cannabis regulators across the nation began sharing information on reported illnesses with Delta-8 products, we plugged this loophole with an amendment to Senate Bill 49 that effectively banned synthetic, chemically derived cannabinoids, including Delta-8 and any other new isomers or compounds that could be created, unless they are approved by the Nevada Cannabis Compliance Board.
This change made it illegal in Nevada to produce synthetic cannabinoids—like Delta-8—outside of our state’s strictly regulated cannabis market.
Although this change helped put crucial protections in place within Nevada, the continued availability of illicit products online, the loopholes in the current federal definition of hemp, and the lack of clarity and action at the federal level regarding unintended consequences of the hemp legalization effort make enforcement a challenge.
The issues we face today in the cannabis and hemp industry are complicated given the explosion in cannabis popularity and lack of research as a result of longstanding classification as a controlled substance.
More work must be done in Nevada and elsewhere to continue combating the illicit market. Congress will also need to do its part, leaning more heavily on experts who are in the field, and ensuring, as state regulatory bodies and chief legal officers do, that public health and safety remains the top priority.
Tyler Klimas is executive director of Nevada’s Cannabis Compliance Board. He also serves as treasurer for the Cannabis Regulators Association, a national organization of government officials involved in cannabis regulation in over 40 U.S. states and Canadian territories.
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