Background-
The ITCC received an inquiry regarding the use of hemp derived THC distillate in the tribal marijuana program. The question posed was “can THC distillate be used in conjunction with tribal produced marijuana distillate or other extract oil to produce a combined end product that would be packaged for sale to consumers?”
Legal Framework-
The 2018 Farm Bill included a broad and simultaneously narrow definition of “hemp” and has since resulted in a marketplace that includes a wide variety of products that are either directly derived or chemically derived from “hemp” and those products contain a vast variety of cannabinoids.
The definition includes “the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers” from a Cannabis sativa L. plant with not more than 0.3% delta-9 THC on dry weight basis.” The language contained within the Farm Bill effectively legalized cannabis at a federal level by calling it “hemp”. The Farm Bill did not however supply any regulations, so a patchwork of statutes have been enacted by various states and tribes in the absence of federal regulations.
The 2018 Farm Bill language also left gaps in the “hemp” definition. The gaps include the “0.3% delta-9 THC by weight definition” which allows for high concentrations of delta-9 THC being in the product but still meet the definition of hemp. The THCA problem in which the narrow definition of hemp that included delta-9 THC but the acid form, THCA, which converts to THC when heated or combusted. The derivatives section essentially legalized anything that came from the plant including cannabinoids derived chemically from CBD.
Taking the Farm Bill into consideration, the ITCC then reviewed the Tribe’s current marijuana code to see if either allowances or restrictions were contained within the language. After reviewing the applicable marijuana codes, the ITCC offers the following:
“Marijuana” defined.
1.“Marijuana” means:
(a) All parts of any plant of the genus Cannabis, whether growing or not;
(b) The seeds thereof;
(c) The resin extracted from any part of the plant, including concentrated cannabis; and
(d) Every compound, manufacture, salt, derivative, mixture or preparation of the plant,
its seeds or resin.
2. “Marijuana” does not include:
(a) Industrial hemp, as defined in NRS 557.040, which is grown or cultivated pursuant
to the provisions of Chapter 557 of NRS; or
If the hemp derived THC distillate meets the qualifications of SECTION 23.110.2(a) then by definition it is not “marijuana”.
If it is being used as a “non-marijuana ingredient” per tribal cannabis regulations, it must come from a source that is compliant “with the requirements of federal and state law and regulations and are approved by the Division, including, without limitation, commercial and retail businesses”.
As the Farm Bill allows for these “hemp” derivatives, the requirement within the tribe’s code appears to be satisfied.
Combining a “non-marijuana ingredient” with “marijuana” creates a “Marijuana-infused product”. Any and all marijuana or marijuana-infused products must comply with mandated testing protocols.
Conclusion-
The current tribal marijuana code language offers no restriction on the use of “hemp” derivatives.
Under the current “hemp” regulatory framework, which includes both Federal and State, the tribes do not have a clear path forward to follow, so they must lead. ITCC is unaware of any compact that exists between the tribe and the State regarding “hemp”.
ITCC suggests that Tribal Hemp Compliance Regulations be drafted and implemented as soon as possible. Resolutions adopting changes to the definitions of "marijuana" should be sent to the ITCC by the initiating tribe.
The goal of these regulations should be to establish a ground-floor, not a ceiling. Regulations should focus on establishing minimum safety standards, education, enforcement standards and protocols, as well as a cohesive existence parallel to the current marijuana codes.
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