$290K up in smoke: What laws allow state authorities to seize hemp products? [Lancaster Watchdog]

• By Jack Panyard/LNP | LancasterOnline

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Ben Cohen was working a manager shift at American Shaman, a natural vitamin and supplement store on North Queen Street in Lancaster city, when agents of the Lancaster County Drug Task Force came into the shop in mid-April and seized thousands of dollars’ worth of products.

The agents took gummies, oils, vapes and more that contained the Delta 8 and Delta 10 varieties of THC, the psychoactive chemical compound in marijuana and hemp. The legality of these types of THC is a matter of some debate: Vendors say they are not expressly prohibited by law; authorities say otherwise.

Cohen, a botanist, has worked with cannabis plants in Colorado and sells related products online with Tucquan Seeds. He tried telling the agents who were seizing store property that the products were not illegal because state and federal laws do not specifically prohibit them.

He asked the agents if they knew anything about the laws on which the seizures were based. Cohen said they did not.

“We were both confused,” Cohen said.

A series of April raids conducted by the Drug Task Force at the direction of Lancaster County District Attorney Heather Adams netted nearly 7,200 products worth $300,000 from 25 stores.

According to Adams, the task force issued notices to 43 stores, including smoke and supplement shops and convenience stores, as well as hemp growers in the county, warning them that products containing Delta 8 and Delta 10 are illegal.

Adams said anyone caught producing or selling them after the seizures could be charged with possession of a controlled substance and receive up to a year in prison and a $5,000 maximum fine; or possession with intent to sell and receive up to five years in prison and a maximum fine of $15,000.

But does Adams have the law on her side?

The chemicals and the law

The Delta 9 strain of THC is the kind most commonly found in marijuana, which has legal medicinal uses in Pennsylvania, and hemp, a plant similar to marijuana that has lower THC levels and a variety of industrial uses including the manufacturing of food and textiles.

While Delta 8 and Delta 10 do occur naturally in small amounts, they are usually produced synthetically, typically manufactured from hemp.

All three THC varieties have psychoactive properties.

Buying and selling marijuana has been illegal in the United States since 1971, per the federal Controlled Substances Act. Under that act, marijuana is classified as a Schedule I substance, which means the federal government does not recognize any medical use for marijuana and sees a high potential for people to abuse it.

The Delta 8 and Delta 9 THC strains are specifically listed as Schedule I substances.

When legislators revised the federal Farm Bill in 2018 (it gets revamped every five years), they distinguished hemp from marijuana. The revision made hemp legal to produce and sell and defined it as a plant in the marijuana family that has a Delta 9 THC content of 0.3% or less.

The law legalized all aspects of the hemp plant, lumping in seeds, acids, derivatives, extracts and, notably, isomers — chemical variants of THC — like Delta 8 and Delta 10.

With the Farm Bill and the Controlled Substances Act appearing to contradict each other, states have been deciding on their own whether to allow individual THC strains.

Some states have made Delta 8 illegal, including New York,Rhode Island and Maryland, but 2022 saw a big win for Delta 8 manufacturers when the Ninth Circuit Court of Appeals ruled that products containing it were legal under the federal Farm Bill. The court has jurisdiction over western states including California, Arizona, Washington, Oregon, Nevada, Montana, Idaho, Hawaii and Alaska.

Pennsylvania has its own laws governing hemp and THC variants.

Like the federal Farm Bill, Pennsylvania’s Farm Bill defines hemp as a plant in the cannabis family that has a Delta 9 THC content of 0.3% or less.

Because the law makes no mention of Delta 8 or Delta 10, producers of those THC strains maintain they are legal. But state police insist Delta 8 and Delta 10 have been illegal in Pennsylvania for decades.

According to the state Controlled Substances, Drugs, Device and Cosmetic Act, THC varieties “Delta 1, 3, 4 and 6” — each designating a THC strain with psychoactive properties — are illegal.

There’s no mention of Delta 8 and Delta 10 anywhere in there, right? Not exactly.

Deb Calhoun, director of the Scientific Services Division of the Pennsylvania State Police, said her office has been inundated with inquiries about the legality of Delta 8 and Delta 10 products from some of the more than 900 police jurisdictions it serves.

“When people read through the Drug Act, they don’t see the illegality,” Calhoun said. “They’re like, ‘Well, it’s not listed.’”

But according to Calhoun, the state’s controlled substances act, written in 1972, simply used different nomenclature for the exact same chemical compounds. “Delta 6”? That’s Delta 8. And “Delta 3 and Delta 4”? Those are now known as Delta 10.

Calhoun has provided the clarification to district attorneys across the state, including Adams, advising Delta 8 and Delta 10 are Schedule 1 substances under Pennsylvania law.  This led to increased vigilance in monitoring the products, many of which are being sold openly on the street and marketed to minors in the form of brand-name knock-off snack foods.

Among the items the drug task force took from Lancaster County vendors were Ruffles potato chips, Nerds Rope candy and Cookie Crisp cereal, all laced with illegal forms of THC.

Adams noted an increase in poison control calls in the state in 2022 due to children obtaining THC products, ingesting them, then hallucinating, vomiting and passing out. Students in five county school districts have been caught with Delta 8 and Delta 10 products.

Other counties, including Chester, Indiana and Bucks, are also cracking down on products featuring the THC strains.

Calhoun acknowledged the legislation is a little unclear and hopes lawmakers will take steps to clarify it.

“We do, on occasion, work with legislators,” Calhoun said. “The next go around, that will definitely be one of our suggestions.”

The stake of county hemp growers 

Pennsylvania made hemp a legal crop in 2016, and Lancaster County, the state leader in agriculture, holds 33 of the 263 hemp-growing permits issued by the state.

Growers report to the Department of Agriculture, which tests the hemp to make sure it is not too potent. The department confiscates and destroys any hemp with THC content exceeding 0.3%.

Steve Groff, owner of cedarmeadow.farm, a hemp growing and manufacturing plant in Holtwood, processes CBD, a chemical compound found in hemp that has no psychoactive properties. His products include oils and supplements that are designed to help with sleep, anxiety and pain.

Groff received a letter from Adams about the Delta 8 and 10 seizures, warning him if he helped manufacture the products, he could be prosecuted.

Groff does not advocate for psychoactive derivatives of hemp, saying he has never been high and never wants to get high. Groff is interested only in the medicinal elements of CBD. He says the THC seizures look bad for hemp growers.

“It has actually harmed the CBD side of things,” Groff said. “It doesn’t help us, and that’s why I’m glad they banned it. … We want to have a product that people can trust.”

Proponents of recreational marijuana use believe legislation pending in Harrisburg could turn the tide toward legalization. But until then, Adams and some of her cohorts around the state will be sending a direct message to businesses that unclear language in the laws that regulate the Delta 8 and Delta 10 THC strains doesn’t make those strains legal.

“Now that more and more counties are starting to address it, I think it’s going to be on the radar,” Adams said. “I think we’ll start to see more action being taken.”

Cohen, the American Shaman botanist, insists the only real concern with the gummies he sells is how much sugar they have.

While he understands the need for law enforcement to crack down on unregulated products, he believes THC has positive effects and people should be allowed access to it.

“I get that we are in an unregulated market,” Cohen said. “At the end of the day, they’re restricting your rights.”