SMART Policy Podcast
Podcast by the UT SMART Initiative. Host Jeremy Kourvelas speaks with experts from across the recovery ecosystem - representing healthcare, prevention, law enforcement and more - about local, state and federal drug policy to find out what is and isn't working to make this fight against addiction a little easier.
SMART Policy Podcast
How Does Tennessee Regulate Cannabinoids?
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You're listening to the Smart Policy Podcast, a production of the University of Tennessee's Institute for Public Service. In May of 2023, Governor Lee signed Senate Bill 378, House Bill 403, which imposed significant regulations on the production and sale of hemp-derived cannabinoids, including Delta 8, Delta 10, and all other compounds known as cannabimimetics, which have similar effects on the same neurological system as marijuana. Due to changes in the 2018 Farm Bill, these compounds abruptly became legal across the country, and many prevention advocates were saying that we had effectively legalized weed, but worse, as many of these chemicals were being produced and sold without any oversight or restrictions, and kids could purchase these products just about anywhere. The bill that is the subject of our episode today sought to change that. It goes into effect this July.
SPEAKER_00There's also a testing amendment within this bill where a full panel testing of all cannabinoid molecules has to be tested before the final production of the hemp-derived cannabinoid, and that there has to be a potency test on the finished good to confirm the potency.
SPEAKER_01My guest this month is Stephanie Strutner, CEO of the Prevention Alliance of Tennessee, which represents anti-drug coalitions across the state. We dig into the weeds of what this bill does and doesn't do, what its expected outcomes will be, and what cannabis-related law in Tennessee might look like in the future.
SPEAKER_00At the end of the day, we want to protect kids, and we want to make sure that as their brains are forming, they're making the best choices for their health, and they don't always know the consequences, and so we've got to protect our kids. And so part of the cannabis sativa plant that was legalized through the farm bill is hemp, and hemp is defined as the cannabis sativa plant that is 0.3% of THC or lower. So what happened in Tennessee as a result was we started seeing gas stations, other uh entities start selling hemp-derived THC containing products. So even though hemp is lower in THC volume, there are ways that it can be concentrated to get the THC levels higher. I think the biggest problem associated with the changes in the farm bill is it legalized the product and there were no age restrictions. So anyone, regardless of age, could walk into a store and purchase any hemp-derived products. Some other problems that came along with that is it was largely and in fact almost completely unregulated. And so the labeling that went along with these products was just significantly under-reporting the levels of cannabinoids and other products that were in the packages that were being sold.
SPEAKER_01So we basically, I'm so sorry to interrupt, we basically had legal weed and it was Wild West. You had no idea what was in it, who was making it, where it was coming from.
SPEAKER_00That's correct. And so the one thing that was important is um Tennessee Bureau of Investigation purchased some of the products and tested the products to see if the labeling and the packaging was consistent with what was actually in the product, and it was significantly different across the boards. Um the label really was not accurate at all to describe what was in the product that was being sold. I think it's important also to acknowledge what types of products we're talking about. So we're talking about gummies, we're talking about candies, we're talking about edibles like chips, um, cookies, candies, and a lot of the products and the packaging are made to resemble products that anybody would recognize when they walk into a convenience store. So when we think about the marketing to children, that's when it is extremely alarming to think about the age restriction or the lack thereof and anybody being able to go in and purchase these products.
SPEAKER_01Especially when you think about how deceptive the labels uh were in so many situations. And I'm imagining a family who's, you know, stopped at a gas station uh on I-40 and they're running in and the kids are getting some chips or candy or something. They say it might even say CBD on it, but then, you know, that's um people have a different conception of what CBD even is. And of course, that's a broader conversation. But say you have a parent who doesn't realize that this is uh an intoxicating product, and uh then they get it for their kid, and then there's there's nothing to do, you know?
SPEAKER_00And and a lot of times, I mean, I I stopped at a gas station one day just to see what the person behind the counter had to say about the product. And the I was at a gas station um right off of Interstate 40. I was actually on my way to the General Assembly in Nashville when I stopped. And I just asked, you know, hey, what's what's up with with this stuff behind this cabinet? And it was in a big plastic container right next to the cash register, like lottery tickets often are. And so the uh clerk behind the counter was talking to me about the products, and um, they were explaining how many I should consume if I wanted to get high and seemed to be very knowledgeable about the products and the the purpose for why someone would buy them.
SPEAKER_01I also mentioned CBD there too. I I wanted to clarify, we're talking about still a THC product, a synthetic THC product that is just like um in Delta VII has been the most common. There's also Delta 10 and Delta P and these others, and now there's even uh Delta 9.
SPEAKER_00So to be clear, we are not talking about synthetics, we're talking about naturally occurring forms of cannabis. Um we use the term cannabimimetics because there are so many different compounds. So when we talk about delta eight, when we talk about delta nine, we're talking about the specific molecular structure, thinking back to days in organic chemistry where you had to draw the chemical structure and one molecule would be different. That's exactly what we're talking about here. So there's delta zero, delta eight, delta nine is THC marijuana, delta 10, all of these products are part of the cannabis sativa family and have varying levels of THC in them. And so when we think about the bill that we're speaking about today, the bill was written to include cannabis mimetics. That way we don't have Delta 17 come in later as being a product. This bill covers all products containing cannabis mimetics. So in the state of Tennessee, anything over 0.3% THC is still against the law to possess, purchase, or consume. Now we have these regulations for anything THC 0.3% or less.
SPEAKER_01Okay, that is a good distinction. And and you are right. I I wanted to be careful earlier. I when I said synthetic, it is true that there is something called synthetic marijuana, synthetic cannabis, which is completely unrelated. And that is actually derived 100% in a lab. These are uh uh it was inaccurate to call it that. These are these are naturally occurring components. They are uh chemically manipulated in some sense, in that you uh distill things down, you you you remove other things, you you uh uh increase the concentration, and that does require some laboratory processes, but they're not uh purely synthesiz uh synthesized, like say, for example, spice or k2.
SPEAKER_00Right. And then CBD is also um non-intoxicating. So there that's the difference between CBD and um Delta 8 or other cannabis memetics. And just for the record, CBD oil is legal in the state of Tennessee for under certain conditions, and so uh we also have some um caveats around CBD oil as well.
SPEAKER_01What would you say to get to get back to this bill? I I think the fact that it now qualifies, it it has stipulations for laboratory testing, licensure, and all the rest for all types of hemp products, regardless of the concentration of THC. Uh what are some of its biggest uh accomplishments?
SPEAKER_00I I think the the biggest take home is that now that it requires an age restriction. So a person must be 21 years of age or older to purchase, possess, or accept a product containing any hemp-derived cannabinoid, or to knowingly present um proof of age that's false. Someone has to be 21 or older, and the laws follow the same laws that we have for tobacco and alcohol products.
SPEAKER_01Oh, it makes a lot of sense.
SPEAKER_00Yeah, certainly. And there are also a number of other regulations under this bill. And so to be clear, it makes to the class a misdemeanor for anybody to violate this bill. So nobody can sell a hemp drived cannabinoid to anybody under 21. They also um can't persuade or entice or assist a person who is under 21.
SPEAKER_01Oh, I forgot my license, man.
SPEAKER_00Yeah, the social host uh regulations related to alcohol, we've built those into this law as well. Um, we can't distribute samples of any hemp-derived cannabinoids in public places. It's also a class A misdemeanor for a retailer to fail to maintain the products behind the counter. But the that stipulation doesn't apply to businesses like tobacco or vape shops that are limited to customers 21 and older only all the time.
SPEAKER_01So, what does enforcement look like?
SPEAKER_00So we saw the bill you mentioned that we had a bill very similar to this one in the last session that just got hung up at the very end and died at the end of the session. I don't know what happened in between the sessions, but we had a lot more support of it this go-around. The enforcement regulations were in addition to what we were looking at last session. And so the enforcement pieces are really important because when we talked about um like tobacco, the Tennessee Department of Agriculture regulates the illegal sale of tobacco to miners, as they do now with cannabis memetics. And so there's also a privilege tax, and the privilege tax is to cover the cost of the Department of Agriculture's enforcing the new regulations.
SPEAKER_01I uh I also see that it's uh illegal to switch out the packaging. You can't buy a product and then put it in new packaging. I think that's a really interesting point, too, in terms of you know downstream manipulation, because uh with substances in general, we have a cutting problem.
SPEAKER_00Certainly. There's also a testing amendment in within this bill where a full panel testing of all cannabinoid molecules has to be tested before the final production of the hemp-derived cannabinoid, and the there has to be a potency test on the finished good to confirm the potency. The potency also has to be listed on the product. Um, the Department of Agriculture is now required under this new law to sample and analyze the products. And then what is listed on the label has to be consistent and there has to be a certificate of analysis showing that they are the same. They also have to have the package has to have a quick response code, a QR code, so that somebody can scan the product and then it will go to the website that confirms with the certificate of analysis of what's in the product.
SPEAKER_01And they're testing for a lot of things here: heavy metals, pesticides, microbials, mycotoxins. I mean, a whole bunch of stuff. I think from just a purely public health perspective, I think this is this is a really good thing because we've been hearing a lot about these vape-related injuries, people showing up. It's not just a COPD issue. This is, you know, arsenic and silicon ended up ending up in people's lungs and things.
SPEAKER_00Yeah, certainly there are a lot of, especially in in any drug that there is not a lot of oversight over, we see a lot of contaminants. And certainly this bill goes a good distance to make sure that we limit the contaminants that can be harmful to someone's health. There's been a lot of discussion, especially in other states, as they legalize cannabis in one form or another, of how that applies to drug-free workplace regulations. And so there is a stipulation in this bill that specifically states that this bill does not require an employer to accommodate the use of a hemp-drived cannabinoid in the workplace, or allow it, it does not require an employee to be allowed to be under the influence of a hemp-drived cannabinoid in the workplace. And so there are those protections. So a workplace can still ensure that their employees are not under the influence of a cannabinoid while they are at work. And this is also just like alcohol. Well, it yes, but no, because there is a field sobriety test for alcohol. There is not a field sobriety test for cannabis, and so it leaves us with a significant degree of gray area because if you have a traditional drug test, either a blood draw or a hair sample or a urine test, for example, you could potentially it is unlikely at a low concentration for someone who is cannabis naive, meaning they they don't use a lot of cannabis to have a confirmed positive drug screen. However, it is plausible and it for a for a continuous user, it is more likely for somebody to have a positive drug screen, even from low-level THC products.
SPEAKER_01And I understand um in some situations these can last up for at least a month, if not more, being that it's such a lipophilic, it ends up in in, like you said, fat cells, hair cells. I mean, it it ends up in the body for quite some time.
SPEAKER_00It does, and it it depends on the dose and duration of use. So it and also it depends on a person's body chemistry. And so there are a lot of factors that come into play when we when we talk about drug testing. Um, this is one of the biggest barriers to legalization that we see in the field of public health when it comes to safe driving, for example, um, safe workplaces, so many other degrees of safety that we consider when we think about being under the influence of a substance because cannabis is extremely difficult to say if someone is under the influence and intoxicated now, or if they were yesterday.
SPEAKER_01Yeah, this is has has already been an issue in states that have decriminalized or legalized, especially in the context of there still being no federal protections or or legalization. But it's a it's an interesting thing. Uh someone was fired uh uh because of cannabis use, and they said uh as you said, they they weren't high that day, they were the day before they had used before. So it's uh definitely a complicated scenario.
SPEAKER_00I mean, some of those laws have gone to the Supreme Court. In fact, Dish Network was one of the first companies to fire an individual. This was in the state of Colorado, this was a number of years ago, and the individual possessed a medical marijuana card and obtained it legally in the state. Uh received so Dish Network in the state of Colorado was a certified drug-free workplace, which means that they are required to do randomized drug tests on their employees. This person came up for a random drug screen and had a non-negative or in other words, positive, test for cannabis and was relieved of his position. Um, he sued Dish Network for unlawful termination, and the case went all the way to the Supreme Court, and the Supreme Court upheld Dish Network's decision to terminate his employment because drug-free workplace laws prohibit a person from being under the influence while they're working in that capacity, and because there wasn't a way to determine the Supreme Court sided with Dish Network.
SPEAKER_01Right. So he maintained that he never used at work just when he was off the clock. And if there were such a test that could prove that it might have gone a different way. That's right. Interesting. Interesting. Well, I certainly see the caution behind the Supreme Court's decision. But yeah, I mean it it's this is this is the perpetual issue with testing and and substance use. And don't get me started on fentanyl and and testing for that. But uh the 21 years or older is is a big thing. I I I understand that this has been a priority of a lot of of advocacy and prevention efforts. I was wondering if you could talk to that effect and what it's been like having that discussion.
SPEAKER_00Well, I I think it's been a pretty simple discussion from a primary prevention standpoint because it it's it's very simple. The supply and demand, the access issue. If if a child cannot access Delta 8 or Delta 9 or Delta Zero, then they can't use it. And so that's the the biggest area of concern here. And it it was a very simple conversation. And in fact, there really wasn't any pushback from the Tennessee legislature because I haven't spoken to anybody who says, oh no, I think kids should be able to legally purchase cannabis. And so this was a pretty simple conversation for us to have. I think a few things that come into play here is now even Congress is recognizing that there were some that that they lacked some oversight in the 2018 Farm Bill. So the Farm Bill actually should have been passed um this month, but um Mitch McConnell has come out to say it's not going to be ready. We're not gonna have anything to pass now because there have has been so much talk about the legalization of hemp. And so they opened the bill up for public comment. And I know a lot of people in our field of public health had a lot of comments about that need for age regulation. So I think in in the next iteration of the U.S. Farm Bill, we'll probably see some age restrictions when it comes to hemp-derived cannabis.
SPEAKER_01So the next iteration of the farm bill is now going to be open for public comment or is already and uh uh age restrictions. Do you do you do you expect any other stipulations to be included in this?
SPEAKER_00The public comment section has actually closed now, and Congress is negotiating the changes that will be made. But the public comments I think received based on the feedback that we have gotten from Congress are that there were a lot of entities from states all across the country with concerns related primarily to the age restriction of cannabis. Now, the farm bill encompasses many, many other topics. Um, this is just one minor detail of the farm bill, and so I think that there will be changes in other areas of the farm bill. The one that we are most concerned about in the field of primary prevention is, of course, the age restriction of cannabis.
SPEAKER_01Right, certainly. I don't think corn or beef are gonna likely come up in your agenda.
SPEAKER_00No, definitely not.
SPEAKER_01Hey, this is Jeremy. I just wanted to add a quick update as we recorded this episode back in September of 2023. So the 2018 Farm Bill actually got extended through the bipartisan stopgap measure that was signed in early November. So the deadline for a new farm bill is now September 30th, 2024. All right, well that's that that that's good to know that there's some talk at the federal level about this because I understand that from the state perspective here, a lot of lawmakers uh felt caught off guard uh that suddenly floodgates were open and now uh you know 12-year-olds could buy pot and gas stations.
SPEAKER_00Certainly, and uh we had some other states in the United States who were very quick to regulate the age restriction, and it took us a little bit longer, but we at least made those changes in the state of Tennessee.
SPEAKER_01Yeah, I I understand that that session where it almost where it was introduced and it did it did get decent traction in uh commission uh in committees. I that was a pretty consequential session and there was a lot happening, and I remember that bill being introduced relatively late in the game. I probably because there's just there was if memory serves, uh there was another bill that also uh addressed uh licensing and uh uh r regulation of self-capacity of cannabom medics. It just seemed like lawmakers are trying to figure out what exactly they wanted to include and make uh the bill as as good and airtight as possible. And I have to say this is a very robust bill, uh despite the fact that it has quite a lot of similarities with the one that that uh failed in that previous session. This one seems to be rather robust with a lot of very explicit clarity.
SPEAKER_00It's very clear. And if we look back to the 2022 session, the bill, the initial bill was actually a ban on Delta Eight.
SPEAKER_01Right.
SPEAKER_00It passed the Senate. It got hung up in the House because the House wanted to regulate Delta Eight rather than ban it. And I think eventually they just ran out of time. So I that might be why we enter 2023. We have a more robust bill, perhaps based on the conversations that happened in the House and came up with a way that the House and the Senate could agree on a regulatory structure.
SPEAKER_01That makes sense. So prevention. Are there any um funds? Are there any plans to use some of these funds for prevention programming in any capacity? I know I know sometimes, for example, I I believe it is Colorado that uses uh the cannabis tax they have out there for their legal marijuana to go to uh school, uh school prevention programs, things like that.
SPEAKER_00We don't have any regulations on using any of the funds for prevention. There's a 6% uh privilege tax, um, or I'm sorry, it's a 5% privilege tax. 50% of that, as I mentioned, goes to Department of Revenue, 50% goes to Department of Agriculture for compliance. Now, compliance checks are part of prevention, so one could argue that that is the piece of prevention that's being covered by this bill. Obviously, we'd like to see any tax of an illicit substance go to prevention. Right now, though, we do have a number of coalitions across the state that are already actively engaged in primary prevention for many different forms of cannabis. We have funding from the Tennessee Department of Mental Health and Substance Abuse Services that comes from a variety of means. We have state funds that go into prevention in the state. We also have a number of federal block grant dollars, the substance abuse prevention treatment block grant dollars flow through the department and into local communities. We have money from the Centers for Disease Control and Prevention in the state, from SAMHSA Substance Abuse Mental Health Services Administration, the Center for Substance Abuse Prevention, the Office of National Drug Control Policy. So there's a tremendous amount of prevention that's going on in the state of Tennessee related to cannabis.
SPEAKER_01And I think the federal government just announced uh an additional round of funding uh through CDC SAMHSA and uh HERSA. Just this, the the fact that it regulates the sale to 21 and over is in and of itself prevention. I think that's a very good point.
SPEAKER_00Yeah, I mean, and that was our big win. Please don't get me wrong. I would take any additional prevention dollars every day. But we we celebrate our wins where we can get them. And I think this one was a big win. In addition, there's one other stipulation. There, there's also a licensure amendment that is part of the final bill. And so any business or any person that is selling a hemp-derived cannabinoid in the state has to obtain a license from the Department of Agriculture also authorizing them to commence business. They have to have their license by July 1st, 2024. Um, they also have to have a criminal history background check that includes fingerprints against state and federal criminal records that's maintained by the Tennessee Bureau of Investigation and the Federal Bureau of Investigation. Um, sales are also prohibited, like we see with alcohol, within 1,000 feet of a school, both public and private, or a charter school that serves any grades K through 12. And there is a limit to the Department of Agriculture's authorization to determine their requirements for the licensees. And so they can, there's a new fine structure that goes along with the Department of Agriculture's regulation over these businesses. So there is a thousand dollar fine for the first violation,$2,500 for a second violation that occurs within two years of that first violation, and then$5,000 for a third violation if it's within two years of the first. If there is a subsequent violation, they are their license will be revoked and they will no longer be able to sell for two years. Anyone who does not maintain compliance with the law is required to retrain all of their employees under the supervision of the department in addition to the civil penalty that's imposed. So there's a training requirement that comes along to all the clerks who are selling these products as well.
SPEAKER_01All things considered, I I have to say it it seems even though it's tough, there is fairness here. And I think that that's appropriate considering that this is uncharted territory, especially for the state.
SPEAKER_00Anytime we see legalization of cannabis, it it opens up the opportunity for a change in our norms. Already we see we we know that cannabis in in its higher potency form, marijuana, is illegal in the state of Tennessee, yet we still can drive within 10 miles and pass by multiple stores that claim to be cannabis dispensaries. And so we we see this normalization beginning to occur, it has already occurred even in Tennessee, where we don't have legalization. And so that's something that we definitely have our finger on the pulse of community norms because at the end of the day, we want to protect kids and we want to make sure that as their brains are forming, they're making the best choices for their health, and they don't always know the consequences, and so we've got to protect our kids.
SPEAKER_01Now, something that I think is interesting, we talked about federal action and how that can catch states uh by surprise. I notice here though that in our definitions for this in this bill, it says clarifies that hemp does not include a substance that is categorized as a Schedule I controlled substance on or after July 1, 2023. I know that there are encouragements for the DEA to reschedule marijuana from Schedule 1 to Schedule 3. So that that would change this bill. Would that effectively make this a full cannabis and cannabimedic regulation bill?
SPEAKER_00I believe that it would. And I think they the the Tennessee General Assembly probably had that foresight in mind just in case the the DEA were to reschedule marijuana. Now, even if the DEA reschedules marijuana, it is not automatically legal in Tennessee. It is just then rescheduled. It still is not FDA approved, and so there are still lots of loopholes that would be uncharted territory, like you said before, that we would have to navigate through, but that stipulation already exists just in case there's a federal mandate that changes the legality of marijuana.
SPEAKER_01Looking over the other states that have legalized and decriminalized, I I think it's pretty easy to say that there are better ways and worse ways to go about it. We've seen some states where uh the laws ended up being too permissive and you saw an explosion on the black market and a lot of the purported benefits like uh taxes going to prevention programs, it just didn't happen. It stimulated more sales uh in in illicit territories, things like that. So th this seems like that we have prepared ourselves to have this regulatory uh age restriction framework that should it get rescheduled and should Tennesseans want to change whether or not marijuana is legal or illegal in Tennessee, that there's there's more of a bumper line on the on the on the alley here.
SPEAKER_00We've also been compiling a list of best practices from states across the country of marijuana regulation. And so if the time comes where Tennessee makes a decision or there is a federal decision that affects how marijuana is regulated in Tennessee, we will be faced with some additional bills to regulate that structure. Um, we do we we have been monitoring though those best practices because as you mentioned, we have learned what not to do also from some states. And there are there are states, including the state of Colorado, who have people in high positions who are talking about their lessons learned and what they should have done differently. And so we in the field have been able to hopefully learn from their missteps and not create our own. We don't have to reinvent the wheel here if the time comes. I mean, obviously, it reduces access for our kids for marijuana to continue to be an illicit substance in the state of Tennessee, but if something changes, we're prepared to make sure that our public health laws in the state of Tennessee support the health of not only adolescents and youth, but adults alike.
SPEAKER_01Well, Stephanie Startner, thank you very much for joining me today. I think we uh shed a lot of light on this. I think a lot of people are gonna be happy to know what this bill does and doesn't do. Uh, and uh this was a really informative conversation. Thank you very much.
SPEAKER_00Thank you, Jeremy. Always a pleasure to be with you.
SPEAKER_01For more episodes on in-depth discussions on Tennessee policies related to substance use disorder by a range of local experts. Please subscribe to us wherever you get podcasts and visit our website at smart.tenessee.edu. I'm Jeremy Corvellis. Thank you for listening and see you next month.