Louisiana May Have Accidentally Legalized THC Products. Now Officials Want to Crack Down.

By Sam Karlin

The Advocate

In November, John Williams, the top beer lobbyist in Louisiana, sent out a mass email to legislators with an alarming subject line: “Recreational THC is now legal in Louisiana.”

He distributed pictures of gas stations and smoke shops advertising products full of THC -- the psychoactive chemical found in marijuana – many of which hit the shelves after House Speaker Clay Schexnayder ushered through legislation to set up a legal hemp industry in the state. In a followup email, Williams, who opposed the hemp legislation, said the businesses selling the THC-laden products play by a looser set of rules than alcohol retailers.

The effort to loosen the rules on hemp, which followed a similar action in the federal farm bill in 2018, was initially pitched as a way to establish hemp -- a cousin of marijuana with far lower levels of the psychoactive chemicals -- as an agricultural commodity. But Schexnayder’s 2022 bill set up an “adult-use” market for consumable products made from hemp. Schexnayder assured fellow legislators, many of whom oppose legal recreational marijuana, that his legislation wouldn’t give people access to products that get them high.

But visits to a handful of the roughly 2,500 registered CBD retailers that have popped up in Louisiana makes clear that it hasn’t worked out the way Schexnayder promised it would. It is now easier than ever for adults to get access to gummies and other products that get them high. That’s largely because the products contain Delta 8 THC, a compound from the cannabis plant that is slightly different from the Delta 9 THC that defines marijuana.

Now, regulators and lawmakers are trying to unring the bell and crack down on a massive proliferation of THC-laden products that have become widely and legally available.

Mixed messages

The ubiquity of cannabis-related products on store shelves underscores the confused state of Louisiana’s stance on marijuana. Marijuana is technically illegal, but it has been decriminalized, making possession similar to a traffic ticket. But it has become easy to get marijuana legally, if not cheaply, through the state’s medical program. Meanwhile, the hemp-derived THC market has blown up, offering far lower prices than the medical products.

At a Drug Policy Board meeting Friday, state officials pointed to several reasons for the explosion in widely available products that get people high. Some products take advantage of loopholes in the law, while others run afoul of the law altogether. Sorting out which is which is up to overwhelmed regulators. The board – which has historically taken a hard line against recreational marijuana – voted to ask the Legislature to repeal the law allowing for adult-use consumable hemp.

The Louisiana Office of Alcohol and Tobacco Control, which employs about 35 enforcement agents that monitor more than 10,000 vendors of liquor and cigarettes, sent out a memo at the end of January vowing to crack down.

Citing an “increased threat to public safety,” the agency vowed to conduct an “aggressive enforcement of marijuana laws” and demanded that stores take down signs advertising “legal THC products.”

“Ninety percent of our purveyors are trying to do the right thing,” Ernest Legier, head of the ATC, said in an interview. “There is a percentage of retailers and wholesalers that are using caveats in order to be able to make THC-laden products that are designed to get you high available to the public. That was never the intent of the CBD products.

“There’s such a volume of these illegal products that, for an agency with limited resources, it makes it very very challenging to protect public safety,” he added Friday.

Schexnayder, a Gonzales Republican who chaired the House Agriculture committee before becoming speaker in 2020, has shepherded the laws allowing consumable hemp products and offered assurances they wouldn’t be used recreationally.

“Absolutely,” he told Rep. Polly Thomas, R-Metairie, when she asked whether it was true that people couldn’t get high from the products. He said it would take “tractor-trailer loads” of the hemp-derived chemicals to elicit a high.

It turns out a couple of gummies does the trick.

Schexnayder has sought to blame the problem on the Louisiana Department of Health, which oversees labels for the products. The agency’s top lawyer, Stephen Russo, said at a recent legislative hearing that the agency accidentally approved vapes, which aren’t allowed, but recently wrote an emergency rule to tighten up.

“If the Louisiana Department of Health is approving products with high levels of THC because of any perceived loophole or nuanced language in the bill, then they need to stop immediately and are going to have to explain to myself and the rest of the Legislature why they took that action,” Schexnayder said in a statement.

Schexnayder added that the Legislature will review any loopholes in the bill during the upcoming session.

How we got here

The wording of one section of Schexnayder’s most recent hemp bill may help explain how products that get users high wound up on Louisiana shelves.

Schexnayder’s bills – passed in three consecutive years – established several limits to THC. The law now says the hemp’s Delta 9 THC content can’t exceed 0.3%; its total THC content – including Delta 8 and others – can’t exceed 1%; and that each serving size in a consumable hemp product can’t exceed 8 milligrams of THC.

The 8 mg threshold, established last year, can get users high, according to experts and state officials. Shops often sell products like tincture bottles that have 100 mg of Delta 8 THC in them, but they typically recommend a serving size of 5 or 8 mg.

The laws have confused state and local officials. There was disagreement Friday about Delta 8’s legality. A prosecutor in Jefferson Parish said it’s not possible to prosecute people for Delta 8, while Legier of the ATC said his agency is now taking the position that Delta 8 falls under the recreational marijuana prohibition if the products aim to get users high.

And with Legier and others indicating it may not be feasible to get all such products off the shelves, given the sheer volume, some suggested it might be wise to use tax revenue from the products to counsel youth about the dangers of drug use.

Delta 8 has been available in certain parts of Louisiana since before the 2022 bill. Joseph Jones, who studies cannabis, said the North Louisiana Criminalistics Lab, where he works, started seeing it in early 2021. Google trends data indicates Louisianans’ interest in Delta 8 peaked in late 2021.

Jones told the officials gathered Friday that “it’s the dose that makes the poison, and how you administer it.” He pointed to data showing Delta 8 THC is only slightly less potent than the Delta 9 found in marijuana.

Kevin Caldwell, southeast legislative manager for the Marijuana Policy Project, which advocates for legalized recreational marijuana, said the state should put hemp-derived THC products through the same regulations and testing as medical marijuana.

“Prohibition has never worked,” he said. “We’d rather see these products regulated for consumer safety.”

The Legislature, dominated by Republicans, has so far refused to legalize marijuana for recreational use, as 19 other states have done. But lawmakers and the most powerful opponents of legalization, law enforcement groups, have also conceded that it’s only a matter of time before the drug becomes legal.

In the meantime, the same opponents of recreational marijuana are waking up to the fact that, in some ways, that reality is already here, on the shelves of gas stations and vape shops all over Louisiana.

“It looks like it would almost be impossible to regulate and control it,” Edward Carlson, who runs the drug treatment Odyssey House in New Orleans, said at the board meeting Friday.