Friends, I wanted to quickly circle back on two topics that I’ve highlighted in prior Cannabis Musings, in part because I’ve run out of novel ideas for this week.
First, Delta-8 THC popped into the national spotlight a week ago when the New York Times ran a story about the hemp product’s growing popularity. (link) The NYTimes article quotes fellow cannabis bar (a term lawyers use to refer to themselves like they’re part of an exclusive club) lawyers about the highly-questionable federal legality of hemp-derived Delta-8 THC, echoing the point I made in my Musings last summer (about which I discussed with them at the time!) when the Drug Enforcement Agency issued guidance relating to the 2018 Farm Bill. (link) Hemp Industry Daily recently noted that the DEA’s take on the product is the subject of industry litigation. (link)
I still stand by my (not legal advice) perspective on Delta-8 THC from last August – I see no apparent reason for the DEA, or any Federal judge for that matter, to make it possible for a psychoactive product to be sold legally so long as cannabis is a controlled substance. We should absolutely be having these conversations, and I think that it’s great for the industry for major national media outlets to be profiling the business, but there’s always risk that the details get muddied by the message.
Second, if you haven’t gotten enough of learning about the problem of interstate commerce in cannabis (link, link, link), Professor Robert A. Mikos at Vanderbilt Law School has put up on the web an upcoming law review article that he’s written, aptly titled “Interstate Commerce in Cannabis”. (link) A word of caution – law review articles have their own, very specific style, so they’re not for the faint of heart (my law review article from when I was in law school wasn’t nearly this interesting), but Professor Mikos does a great job framing the issues and explaining why the current state restrictions on interstate commerce are untenable under the U.S. Constitution.