Last year’s Green Rush has just hit a brick wall – the vaping epidemic – with profound implications for all things cannabis. As casualties mount, the very premise of legalization hangs in the balance, much as Prohibition did in the 1920s after poisonous alcohol killed thousands.
What a short, strange trip it’s been. The controversial but coveted weed that no law could banish got a new, more dignified name. Pot, the menace, became cannabis, the medicine. Legalization was shaping up to be a noble experiment that was going to work out for everybody.
Now users are getting sick and dying. The cause has yet to be pinpointed, but the Center for Disease Control and state health officials have narrowed the victim profile to largely young males vaping illegal THC oil.
History, the saying goes, never repeats, but it does rhyme. From 1919 to 1933 it was illegal to make, sell, or transport alcoholic beverages in the US. Enforcement of Prohibition was chaotic, corrupt, and the inspiration for a host of unintended consequences, especially illness and death. Right about the time that President Herbert Hoover declared Prohibition “a great … experiment, noble in motive”, illegal booze adulterated with poisonous ingredients is estimated to have sickened hundreds of thousands, and killed tens of thousands. Nobody really knows. By the time the law was repealed, the noble experiment had become an American tragedy.
Exactly a century after Prohibition became law, the vaping crisis is shaping up to be another American tragedy, if not so epic. It threatens to trigger a backlash that could throttle the young cannabis industry in its crib. Investors have poured tens of billions into startup and early stage companies with great stories to tell and little else.
By the time the vaping epidemic broke out, the Green Rush bubble had already begun to deflate. Stock indices that track portfolios of publicly-traded cannabis companies peaked in January 2018, when California became the sixth and largest state to allow the sale of recreational marijuana. Since then, those indices have shed on average half or more of their value.
The crisis also threatens to blow a hole in the industry’s overall product development and marketing strategy. Two months ago, a headline on the website GreenEntrepreneur.com declared vaping, “The Future of Cannabis Consumption”. A BDS Analytics report on California’s first year of legal adult use found that cannabis concentrates (principally oil) outsold flower for the first time. Just as it was becoming the delivery system of choice, vaping anything seems a bit risky.
Prohibition and cannabis legalization are examples of massive failures of federal regulation. Prohibition was a poorly thought-out policy with just one tool in its kit – the eradication of stills, destruction of product, and prosecution of miscreants. Onerous regulation bred crime syndicates and a national health crisis.
Federal marijuana regulation has also relied on the criminal code – eradication of grows, interception of shipments, and prosecutions. States whose voters and legislatures decided to legalize have each had to make up their own rules, which can range from chaotic to ineffective, most particularly in California. Some testing labs report that there are few or no state inspectors on the ground to even take reports about contamination, let alone investigate them.
Industry executives and insiders privately say the endgame will likely resemble what followed the repeal of Prohibition. Liquor and beer industries picked up the baton, reopening their mothballed distilleries and breweries. Bars and taprooms turned on the lights and unlocked their doors. Business as usual.
If consumable marijuana-based products are now medicine, it follows that the most likely savior this time will be the drug industry. For some investors, especially venture capital groups, that’s been the allure all along.
In a recent interview, Harris Damashek, formerly chief branding officer at cannabis industry leader Acreage Holdings, forecast what many insiders expect – until state and federal laws are reformed, which appears unlikely before 2021, the industry leaders will be those with the deepest pockets. “They will compete mainly on size,” he says, “buying up smaller brands and other assets in the rush to get as big as possible as fast as possible.”
The long-term bet is on an outsized payday when federal rules finally change, giving Big Pharma the green light to swoop in and buy out the major players in a bidding war. Cannabis could become a huge new category for an industry that in recent years has been short on breakthroughs and blockbusters. By coincidence, Forbes.com has reported that a Teva Pharmaceuticals subsidiary has signed a deal with medical cannabis company Canndoc to distribute its products in Israel.
As hateful as the prospect may be to purists, pharmaceutical companies have the science, the labs, the expertise, and the capital to create, test, and certify FDA-approved products – on day one. Business as usual. In fact, the FDA has already laid the groundwork.
In little-noticed remarks made just six days before the first reports of mass vaping cases – one month ago – Lowell Schiller, a high-ranking FDA policy official, told a gathering of executives in the hemp business that, “Under current law, it’s unlawful to sell a food or dietary supplement with CBD in interstate commerce.” Schiller paused, and then said, “I’ll repeat that: Under current law, it’s unlawful to sell a food or a dietary supplement with CBD in interstate commerce.”
In case you still aren’t sure where the FDA stands, the agency’s website has a Q&A page titled “Regulation of Cannabis and Cannabis-Derived Products”. The answer to Question #9, “Can THC or CBD products be sold as dietary supplements?” is unambiguous. “A. No.”
CBD is the non-psychoactive element in hemp that is believed to have medicinal properties. It has been invested in by leading beverage and food companies. CBD is sold in products advertised as good for pain, stress, sleep, anxiety, depression, nausea – just about everything. People are ingesting it, cooking with it, putting it on their skin. Search “CBD” on Amazon.com and you get hundreds of listings for CBD dietary supplement products that are clearly being sold in interstate commerce. Let me repeat that …
In his remarks, Schiller pointed out that determining safe levels of exposure in products we put in or on our bodies is one of the FDA’s principal activities. “When we approach that same question with respect to CBD, we do so in the same science-based, data-driven way that we would approach our review of any substance.” In view of the vaping epidemic, that approach has a certain appeal.
The noble experiment of Prohibition failed due to onerous regulation. The noble experiment of marijuana legalization is failing due to careless regulation. It’s going to be a massive ball of string to untangle. There is still a bright future in our lives for cannabis, but it’s a lot farther away than it was a month ago.
I was thinking the same thing today when I heard the news on the number dead. Prohibition reloaded.
Descheduling, and rescheduling, are types of legalization that offer controls and benefits.
The clarifying reconstruction of the malformed federal definition of marijuana will accomplish much of the desired untangling to expose the hidden core of that “massive ball of string” metaphor, by carefully descheduling cannabis in the way that actually upholds the Constitution.
Correctly defined, marijuana itself can also potentially be either descheduled or rescheduled, simultaneously with the careful descheduling of cannabis.
The longstanding fait accompli of the federal government’s overreach of cannabis prohibition under the guise of misconstruing the specific intent of marijuana prohibition, can only be lawfully overcome by legislation from Congress that reveals the “hidden core” of this riddle that has been embedded in each of the federal definitions of marijuana since 1937:
What thing is “all parts of the plant Cannabis sativa L.”, and simultaneously “does not include the mature stalks of such plant”?
For example, there is a legislative reconstruction of the definition of marijuana that clearly reveals how marijuana is actually derived from cannabis. It also replaces the racist term “marihuana” with the familiar anglicized homonym “marijuana”.
This reconstruction explicitly includes the legitimate federal prohibitions derived from the 2nd, 9th, 10th, and 14th Amendments, to specify the perimeter of limited federal controls against cannabis misuse that help to prevent the undesired proliferation of marijuana itself.
This reconstructed definition has the necessary and proper, straightforward format to literally uphold our U.S. Constitution, and the sensible controls that altogether carefully deschedule the plant Cannabis sativa L., independent of the Scheduled status of marijuana:
(16) The term “marijuana” means all parts of the smoke produced by the combustion of the plant Cannabis sativa L., which is, as are the viable seeds of such plant, prohibited to be grown by or sold by any publicly traded corporation or subsidiary company, and such smoke is prohibited to be inhaled by any child or by any person bearing any firearm, as is the intake of any part or any product of such plant containing more than 0.3% THC by weight unless prescribed to such child by an authorized medical practitioner.
Even if marijuana is not immediately descheduled or rescheduled, the cannabinoids from a wide variety of cannabis can be lawfully studied by scientists at NIH, without having to wait for special exceptions grudgingly granted by the DEA.
These studies could help the FDA establish regulations on cannabinoids in food or dietary supplements. They could also help to determine whether the adulterated medical value that marijuana actually derives from cannabis is sufficient to also deschedule marijuana itself, or to merely reschedule that “other substance”.
Real people can contact their members of Congress about reconstructing this extensively malformed definition of marijuana from the Farm Bill of 2018:
(16)(A) Subject to subparagraph (B), the term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.
(B) The term “marihuana” does not include (i) hemp, as defined in section 297A of the Agricultural Marketing Act of 1946; or (ii) the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.