Legal cannabis loopholes are sparking both innovation and creative evasion in today’s cannabis industry, and a host of law professionals are taking pains to elucidate them for clients in cannabis who risk both profit and loss by operating within them. After doing our due diligence with some of the cannabis industry’s top law professionals, Green Market Report has composed a list of the top five legal loopholes keeping things interesting in cannabis right now.
According to Morgan Davis, founder and CEO of Davis Legal, CBD products for food and beverage consumption present one of the most commonly exploited legal loopholes. CBD is still not FDA-approved, but consumables are commonly available everywhere from gas stations to Whole Foods and online retailers. “There are some states that have enacted regulations allowing for hemp and CBD products for human consumption,” Davis says, “but a majority have not. Nevertheless, a consumer can buy hemp and CBD food and beverage products for consumption in almost every state in the U.S.”
David Feldman, CEO of cannabis strategic advisory firm Skip Intro Advisors, puts Delta-8 at the top of his loophole list, and he’s not alone. Legal Associate Demetria Hamilton, in a blog post for law firm Bryan Cave Leighton Paisner (BCLPDigest.com) states that while Delta-8 THC is derived from CBD extracted from hemp plants and has been found to provide a “high” distinct from Delta-9, it still falls under the Farm Bill’s definition of “hemp”. “In other words,” she writes, “while Delta-8 is another name for Tetrahydrocannabinols, its presence in any quantity provides a risky grey area for brave cannabis producers to work-and profit- within.”
Sex & Wellness
Both Feldman and Davis are of the opinion that the medical marijuana market is another realm where cannabis businesses find workarounds to get their products into consumers’ hands. Davis cites “period care”, such as CBD or THC tampons, which are not FDA-approved and, as “medical devices”, are prohibited from including THC or CBD yet are still available online and throughout the country. Sex and wellness is another avenue for loopholes. As “medical devices”, sex toys are regulated by the FDA, thereby prohibiting cannabis as an additive. Cannabis is also not approved by the FDA to enhance the sexual experience or treat sexual dysfunction, yet products (e.g. THC strains specifically targeted to enhance sexual experience, infused lubes, cannabis condoms, etc.) that address exactly those needs are gaining in popularity. “The loophole,” says Davis, “is that most of the companies either sell their product as a topical or “novelty item” to avoid the medical device issue. Add in some creative marketing to avoid being prescriptive and, so far, these products have avoided much scrutiny or enforcement.”
Both Davis and Feldman agree that “gift culture” has long been used as a means of circumventing legal restrictions by including cannabis gifts with a different purchase, such as a sticker, patch or poster advertising the company. A “donation economy” offers a similar workaround, and one that has been utilized in California’s medical market for twenty years. Customers make a donation in an amount equivalent to the cost of a cannabis product, then receive the product as a “free gift” as a token of appreciation for the donation.
“Cannabis hospitality” is a sector of the market where legal loopholes are helping cannabis consumers enjoy products outside of their homes. Restaurants or lounges may offer consumption options like joints or edibles without possessing the requisite retail license, while hotels, event spaces and even campgrounds can take advantage of private property laws to allow them to host cannabis consumption on their property. This does not extend to national parks and property owned by the Bureau of Land Management, which adhere to federal regulations and where cannabis and certain CBD products are illegal at all times. State parks may be more flexible depending on the state’s marijuana regulations. For example, information officer for California State Parks Adeline Yee confirms that “persons 21 and older may possess up to 28.5 grams of marijuana” at California state parks. Smoking or ingesting cannabis in California state parks is still illegal, however, and may only occur on private property.
Morgan Davis observes that some of today’s hottest trends in cannabis are operating in many of these legal grey areas, driven by those who choose to believe that if something is not very specifically prohibited by law, it is legal. “It’s still an exciting interval to watch,” Davis says. “The first one through the wall might get the bloodiest, but they’ll clear the path for all of the monumental ways this plant can transform lives.”