Hemp, Liberty, and the Pursuit of Prosperity: The Case for Fair Regulation

Hemp, Liberty, and the Pursuit of Prosperity: The Case for Fair Regulation

Introduction: Upholding American Ideals

“The Declaration of Independence proclaims that all individuals are endowed with certain unalienable rights, including life, liberty, and the pursuit of happiness. These fundamental rights are inherent and cannot be surrendered or taken away.”

The fundamental principles of Life, Liberty, and the Pursuit of Happiness are core to the American identity, forming the foundation upon which our nation was built. Yet, when it comes to hemp, these principles have been challenged by misinformation, regulatory overreach, and a lack of understanding among lawmakers and enforcement agencies.

The Legal Definition of Hemp

The 2018 Farm Bill defines hemp as cannabis containing no more than 0.3% delta-9 THC by dry weight. This definition includes all parts of the plant, such as seeds, derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers. Consequently, cannabinoids like cannabidiol (CBD), cannabigerol (CBG), cannabinol (CBN), delta-8 THC, delta-10 THC, and tetrahydrocannabinolic acid (THCA) are encompassed within this legal framework, provided they are derived from hemp and the final products contain no more than 0.3% delta-9 THC.

Economic Growth and Industry Expansion

The 2018 Farm Bill ignited an entrepreneurial explosion, leading to the creation of tens of thousands of small businesses built upon the legal framework provided by federal law.  In under 5 years a new industry emerged with an economic impact of over $60 BILLION providing employment to over 300,000 American citizens.  For over six years, hardworking Americans have invested time, energy, and capital into an industry that provides consumers with safe, accessible hemp-derived products. Yet, despite clear legal protections, some lawmakers and enforcement agencies have aggressively targeted the industry based on outdated perceptions and misinformation. This has resulted in inconsistent enforcement, arbitrary crackdowns, and legal confusion that undermine both economic growth and consumer choice.

Pennsylvania’s Cannabis Market: Barriers to Access

In Pennsylvania, the demand for hemp flower far exceeds what is available in the medical marijuana industry. The state’s medical marijuana cultivation program is monopolized by 32 licensed companies growing marijuana for 175 dispensaries owned by 19 corporations,  only two of which are Pennsylvania-based. This corporate control limits consumer access, drives up prices, and leaves millions of Pennsylvanians seeking alternatives.

Instead of embracing hemp as a legal and accessible option, regulators and industry stakeholders with vested interests seek to eliminate competition through legislative attacks and regulatory manipulation. This overregulation supports a thriving black market, as restrictive laws push consumers toward illicit sources.

Most adult-use cannabis consumers simply want legal access to affordable and regulated products, many of which the hemp industry already provides. Rather than waiting for expensive state-licensed marijuana programs that cater primarily to corporate interests, consumers have turned to hemp-derived alternatives, which offer safe, legal, and lab-tested options without the burdensome costs and restrictions imposed by the medical marijuana system.

Rather than addressing the root causes of illicit market growth—such as high costs and restricted access—opponents of hemp focus on fear-mongering tactics, ignoring the economic benefits and consumer demand that drive the industry forward.

Rescheduling Marijuana: What It Really Means

The Federal Department of Health and Human Services has submitted a recommendation for rescheduling marijuana to Schedule III of the Controlled Substances Act.  Schedule III would not legalize adult-use marijuana in Pennsylvania nor any other state. As a Schedule III substance, marijuana would be classified as a prescription drug, limiting access strictly to those with a medical prescription. This change would not expand personal freedoms or open legal cannabis markets in the state. Instead, it could reinforce corporate monopolies and further restrict consumer access to natural cannabis products. Additionally, Pennsylvania's current medical marijuana program operates under state law, which conflicts with federal law. Rescheduling to Schedule III would not resolve this conflict, as marijuana would remain a controlled substance under federal law, and any state-level legalization efforts would continue to be at odds with federal regulations. https://crsreports.congress.gov/product/pdf/LSB/LSB11105

Pennsylvania has already introduced costly regulations for the marijuana industry, making it prohibitively expensive for small businesses to compete. Rather than wasting taxpayer dollars on establishing an unnecessary adult-use marijuana bureaucracy, a more efficient and cost-effective approach would be to implement age-gating measures and support national safety and labeling standards for consumable hemp derived products. These steps would ensure consumer protection without burdening businesses or taxpayers with excessive costs.

The Case for Taxing Hemp-Derived Products

Applying sales tax to hemp-derived consumables in Pennsylvania presents a significant opportunity for revenue generation with minimal impact on taxpayers. Currently, the state imposes a 6% sales and use tax on tangible personal property, which includes cannabidiol (CBD) and hemp products, unless they qualify for a specific exemption.  Most hemp derived consumable products (ie. Gummies) are exempt from the six percent state sales tax.

The potential revenue from taxing hemp-derived products is substantial. For instance, a report by the Independent Fiscal Office estimated that legalizing adult-use cannabis could generate over $1 billion in tax revenue for Pennsylvania over five years.

While this figure pertains to broader cannabis legalization, it underscores the significant fiscal benefits that can be realized through taxation in this sector.

Implementing or enforcing existing sales tax on hemp-derived consumables would require minimal administrative costs, as the taxation framework is already in place. This approach ensures that consumers contribute to state revenue without imposing additional financial burdens on the general taxpayer base.

In summary, the taxation of hemp-derived consumables offers Pennsylvania a lucrative revenue stream with negligible costs, aligning with fiscal strategies to enhance state income without increasing taxpayer expenses.

Addressing DUI Laws and THC Testing

Pennsylvania's zero-tolerance policy regarding THC imposes strict penalties on drivers found with any detectable level of THC in their bloodstream. This approach does not account for the fact that THC metabolites can remain in the body long after the psychoactive effects have subsided. Consequently, individuals, including medical marijuana patients who are not impaired, risk DUI charges simply due to residual THC presence. This policy fails to distinguish between actual impairment and prior use, leading to potential wrongful convictions and unnecessary legal consequences. Research indicates that per se or zero-tolerance laws do not effectively enhance road safety and may unjustly penalize sober drivers. A more nuanced approach, focusing on evidence of impairment rather than mere presence of THC, would better serve justice and public safety.

By enforcing such stringent measures, the state may inadvertently infringe upon a cannabis consumers unalienable rights, particularly the right to liberty. Individuals who are not impaired but are penalized under zero-tolerance laws experience a deprivation of liberty without just cause. This not only undermines personal freedoms but also contradicts the foundational principles upon which our nation was established.

Furthermore, the current methods for detecting cannabis impairment present significant challenges. Traditional roadside tests, such as field sobriety tests, assess physical and cognitive functions but may not accurately identify impairment due to cannabis use. Blood and urine screenings can detect the presence of THC metabolites; however, these metabolites can remain in the body long after the intoxicating effects have subsided, leading to potential false positives. This discrepancy underscores the need for more accurate and reliable testing methods to assess impairment, rather than solely focusing on the presence of THC

It's important to note that THC, whether derived from hemp or marijuana, is chemically identical. When consumed, THC is metabolized into compounds such as 11-nor-9-carboxy-THC (THC-COOH), which can be detected in urine and blood tests. These metabolites do not indicate the source of THC, meaning that individuals consuming legal hemp-derived products can test positive in the same manner as those using marijuana. This biochemical reality further complicates the enforcement of zero-tolerance policies, as they do not account for the legal consumption of hemp products. Therefore, revising current laws to focus on actual impairment rather than the mere presence of THC metabolites is essential to ensure fairness and uphold individual rights.

It is imperative that Pennsylvania reevaluates its zero-tolerance stance on THC to ensure that it aligns with the protection of unalienable rights. Implementing policies that accurately assess impairment, rather than imposing blanket prohibitions, would uphold individual liberties while promoting public safety.

The Pennsylvania Supreme Court has indicated that any changes to the state's zero-tolerance DUI laws concerning THC must be enacted by the legislature. This underscores the necessity for immediate legislative action to address the current legal framework that adversely affects medical marijuana patients. In response, efforts have been made within the Pennsylvania General Assembly to amend these laws. For instance, House Bill 983, introduced by Representative Christopher Rabb during the last session, aims to amend DUI laws to protect medical marijuana patients from wrongful DUI arrests when they are not impaired. The bill seeks to treat medical marijuana similarly to other prescribed medications, ensuring that it is not considered a Schedule I drug in suspected DUI cases, except for licensed commercial drivers. The bill has passed the House and is pending further legislative approval.

Senate Bill 363, introduced by Senator Camera Bartolotta, aims to amend Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes. The bill seeks to protect medical marijuana patients from DUI penalties by requiring proof of actual impairment for conviction, rather than basing it solely on the presence of THC in the bloodstream. This approach acknowledges that THC metabolites can remain in the body long after the psychoactive effects have subsided, thereby safeguarding patients from wrongful DUI charges.

These legislative initiatives reflect a growing recognition of the need to reform existing laws to better align with the rights and needs of medical cannabis patients, as well as to address broader issues related to cannabis legalization and regulation in the state 

Legal Precedents and Misconceptions About Safety

The courts have repeatedly sided with hemp businesses, reinforcing the legality of hemp-derived products under federal law. Federal rulings have made it clear that hemp, as defined by the Farm Bill, remains legal, and attempts to conflate hemp with marijuana are unfounded. Despite this, opponents continue to push a false narrative that these products are unregulated and unsafe, despite millions of Americans consuming billions of products without widespread public health concerns.

Regulation should be based on facts, not fear. If lawmakers truly want to address concerns surrounding hemp, they should focus on reasonable standards that prioritize safety without stifling innovation. That means recognizing the legal status of Delta 8 THC, Delta 10 THC, THCA, etc., implementing rational age-gating laws, and ensuring quality control through Good Manufacturing Practices (GMP) without crushing small businesses under unnecessary red tape.

Furthermore, the argument that hemp-derived products are unsafe lacks evidence. If these products were inherently dangerous, there would be overwhelming proof after billions of sales and years of consumer use. Instead, no widespread public health crisis has emerged, reinforcing that hemp is being unfairly targeted despite its clear legal status and demonstrated safety profile.

The term "intoxicating" is often applied to certain hemp-derived products, particularly those containing cannabinoids like delta-8 THC and delta-10 THC, due to their psychoactive effects. However, labeling these products as "intoxicating" can be misleading and may not accurately reflect their effects or safety profiles.

It's important to distinguish between "psychoactive" and "intoxicating." A substance is considered psychoactive if it affects the mind or behavior, while intoxicating implies a level of impairment that can be harmful or incapacitating. For example, delta-9 THC, the primary psychoactive component in marijuana, is known for its intoxicating effects. In contrast, cannabidiol (CBD), another cannabinoid found in hemp, is psychoactive but not intoxicating, as it does not produce a "high" or impair cognitive function.

Educating consumers about the effects of different cannabinoids is crucial. Clear labeling and accurate information can help individuals make informed decisions about the products they choose to use. Mislabeling or misrepresenting products can lead to confusion and potential misuse.  While certain hemp-derived products can have psychoactive effects, labeling them as "intoxicating" may not be accurate and can contribute to misunderstandings. A more nuanced approach, focusing on clear definitions, rigorous safety standards, and consumer education, is essential for the responsible integration of these products into the market.

Liberty and Personal Autonomy:

The right to liberty encompasses personal autonomy and the freedom to make choices about one's own body and health. When individuals are penalized or discriminated against for legally using THC products to manage medical conditions, their personal autonomy is undermined. This interference with personal health decisions can be seen as an infringement on the liberty that is foundational to individual rights.

Pursuit of Happiness:

The pursuit of happiness includes the right to seek well-being and improve one's quality of life. For many, the legal use of THC products is a means to alleviate suffering and enhance daily functioning. Discriminatory practices that penalize individuals for such use can hinder their ability to achieve personal well-being, thereby obstructing their pursuit of happiness.

Legal Protections and Discrimination:

Recognizing these concerns, several states have enacted laws to protect individuals from discrimination based on their status as medical marijuana patients. For instance, Pennsylvania's Medical Marijuana Act prohibits employers from discriminating against employees solely because of their status as certified medical marijuana users. However, the Act does not require employers to accommodate the use of medical marijuana on their premises and allows for discipline if an employee is under the influence at work.

Despite such protections, challenges persist. The federal classification of marijuana as a Schedule I substance under the Controlled Substances Act means that protections under federal laws, such as the Americans with Disabilities Act (ADA), do not extend to medical marijuana  use. This federal-state discrepancy can result in individuals facing discrimination without recourse, thereby infringing upon their unalienable rights.

Conclusion:

Discriminatory actions against individuals for their lawful use of THC-containing products can be seen as violations of the unalienable rights of liberty and the pursuit of happiness. To uphold these fundamental rights, it is essential to address and eliminate such discrimination, ensuring that individuals can make autonomous health decisions without fear of unjust repercussions.

The 2018 Farm Bill legalized hemp at the federal level, removing it from the Controlled Substances Act and permitting its cultivation and sale under specified conditions. However, individual states have enacted varying regulations, with some imposing stringent limits on total THC content or outright bans on certain hemp-derived cannabinoids. For instance, states like Wyoming and South Dakota have implemented laws restricting the sale of hemp-derived products, leading to legal challenges from the hemp industry.

These state-level restrictions can hinder your ability to operate freely, infringing upon your economic liberty—the right to pursue a lawful occupation and conduct business without undue governmental interference. Such limitations not only disrupt your business operations but also challenge the federal protections established under the 2018 Farm Bill.

The inconsistent regulatory landscape creates disparities among business owners in different states. While the federal law provides a uniform framework for hemp production and sale, state-imposed restrictions result in unequal business opportunities. This patchwork of regulations can place you at a competitive disadvantage compared to businesses in states with more lenient laws, potentially violating the principle of equal protection under the law.

Sudden changes or stringent state regulations can lead to the seizure of products, revocation of licenses, or other punitive actions without adequate notice or justification. Such actions may infringe upon your due process rights, which guarantee fair procedures before the government can deprive you of your business interests.

The U.S. Constitution grants Congress the power to regulate interstate commerce. State laws that excessively restrict the sale or transportation of hemp products may interfere with interstate commerce, creating barriers that affect your ability to do business across state lines. This interference can lead to legal challenges, as seen in various states where the hemp industry has contested restrictive state actions.

The hemp industry is not a loophole; it is a thriving sector that upholds the American ideals of Life, Liberty, and the Pursuit of Happiness. Attempts to restrict it based on corporate influence and misinformation run counter to these fundamental principles. It is time for Pennsylvania—and the nation—to recognize hemp as the legitimate industry it is and regulate it fairly, rather than trying to erase it through legislative overreach and selective enforcement.