Illinois producers of recreational cannabis are facing what they consider to be unfair competition from hemp producers, and the General Assembly is likely to consider action to allow the two businesses to coexist more easily. Rep. La Shawn Ford, D-Chicago, introduced HB 4101 late in this spring’s legislative session to regulate organic compounds derived from hemp, which have proliferated in convenience stores as well as CBD and hemp shops.

The problem for cannabis growers is that hemp and recreational cannabis are the same plant, but quite different. Both hemp and recreational cannabis are the same species, cannabis sativa. The difference between them is legal. Under federal law, hemp is defined as cannabis sativa containing less than 0.3 percent delta-9 tetrahydrocannabinol. Delta-9 THC is found in the cannabis flower and is the primary ingredient in recreational marijuana that gives users a high. By extension, recreational cannabis, or marijuana, is cannabis sativa with a greater concentration of delta-9 THC. Illinois law distinguishes hemp and marijuana in the same way under the Industrial Hemp Act, passed in 2018 before recreational marijuana sales were legal in Illinois. 

Growers of hemp have learned how to derive a multitude of marketable compounds from it. The two most commercially important ones are cannabidiol, or CBD, and delta-8 THC. HB 4101 would require that such hemp derivatives be tested for impurities and restricted to buyers who are at least 21 years old. Representatives of the cannabis industry in Illinois oppose the measure, preferring that the sale of all hemp derivatives be banned until their safety has been proven.

Since 2018, chemists have been busy deriving various chemical compounds from hemp, including the ubiquitous CBD oil found in retail outlets all over Springfield. Users of CBD oil claim many health benefits, like better sleep, pain relief and blood pressure reduction. Sellers are generally prohibited from making those claims because the health benefits of CBD have not been evaluated by the FDA.

Processing hemp has allowed lab technicians to produce compounds similar to delta-9 THC, the most important of which is delta-8 THC. Users of delta-8 THC sometimes refer to it as “marijuana light,” producing a “high without the anxiety.” So long as the delta-8 THC is derived from hemp and not from marijuana, it is not regulated like marijuana. Still, representatives of the cannabis industry complain that hemp derivatives like delta-8 THC compete on an unlevel playing field, since they are taxed and regulated far less rigorously than recreational marijuana.

States that allow marijuana sales have not discovered a uniform strategy for regulating delta-8 THC and other hemp derivatives. Oregon, Michigan and California are considering legislation that would control all derivatives of cannabis, whether from hemp or marijuana, under the same regulatory regime, while Washington prohibits the sale of any hemp-derived cannabinoids. The measure proposed in Illinois falls somewhere in the middle, allowing hemp derivatives but regulating them under a different scheme than marijuana.

More than 100 compounds have been extracted from hemp, but many have not been studied thoroughly and biochemists believe that dozens more are likely to be synthesized from the existing ones. So long as they are derived from plants legally defined as hemp, their sale and distribution are legal and unregulated in Illinois.

The most controversial of those extracts is delta-8 THC which, as its name suggests, is like the heavily regulated delta-9 THC found in products sold in marijuana dispensaries. According to Chemical and Engineering News, delta-8 THC produces euphoric effects that are similar to, but milder than, those of delta-9-THC. The journal reports that delta-8 THC production arose when an oversupply of CBD extracted from U.S.-grown hemp caused the price of CBD to fall. Industry chemists learned to convert CBD into delta-8-THC and began marketing it to consumers who want to relieve stress and anxiety without using traditional cannabis products, as well as consumers who live in places where cannabis is illegal.

The Cannabis Business Association of Illinois, a lobbying group that says it represents more than 80% of licensed cannabis businesses in the state, recently supported a ban on delta-8 THC, arguing that its continued availability will have a “devastating effect” on the sale of cannabis in the state. The association has taken the position that the substance should be banned until regulations are in place after sufficient study. Cannabis Equity Illinois Coalition, a group that advocates for investment of cannabis revenues in communities most impacted by the War on Drugs, says it is opposed to banning delta-8, but would like to see it regulated.

Christopher Hudalla, president and chief scientific officer of ProVerde Laboratories, an analytical testing firm serving both the cannabis and hemp industries, writes that there is a lack of testing of unregulated derivatives of hemp. He points out that not only has delta-8 not been properly tested for long-term health effects, but products advertised as containing delta-8 that come to his lab for testing sometimes have impurity levels exceeding 40%. This is because only trace amounts of delta-8 occur naturally in hemp. Instead, most delta-8 THC is derived synthetically from naturally occurring CBD using toxic chemicals and solvents, which can remain in the extract after processing.

Hudalla also objects to the idea that all hemp derivatives should be automatically legal. “To put that into context,” he says, “if you could find a synthetic pathway to convert CBD into methamphetamine or heroin, that synthetic process would make those products legal – after all, it would still be a hemp derivative.” 

HB 4101 addresses concerns about contaminants by prohibiting the presence of 97 substances, ranging from heavy metals to acids to molds, beyond maximum allowable limits in any hemp extract. 

Hemp farmers in Rushville

Brothers Lance and Justin Ward head sales and operations for Stoney Branch Farms in Rushville, about an hour northwest of Springfield. The Wards are fifth-generation farmers who grow “craft CBD hemp flower” in greenhouses constructed specifically for hemp production. Lance Ward stands in front of rows of plants the color of soybeans in various stages of maturity. The fragrance emanating from the flowering plants is powerful and identical to that of marijuana, but without either delta-8 or delta-9 THC. 

Lance says they’ve been in favor of regulation of hemp derivatives since the brothers began their business. “Regulation will weed out the bad actors,” he said. “And we’d like to avoid the gold rush mentality that was so common when cannabis was first legalized.” In his mind, regulation would mean full-panel testing, strictly limiting sales to those over the age of 21, proper labeling, and placement of retail product behind the counter and out of reach of customers, “similar to what they’ve done in Texas and Florida,” he says. He says keeping hemp derivatives out of the hands of minors, as is done with alcohol and tobacco, is a particularly important component of regulation. He points to the recent incident in Chicago where five high school students were sickened after ingesting what is believed to be delta-8 edibles. “It’s not a good look,” he said.

Flower sold by Stoney Branch Farms is organically grown and tested at New Bloom Labs in Chattanooga, Tennessee, and the analysis is posted on the company website. Each of the flowers contain about 30 different compounds identified by the lab. Other products are analyzed by independent laboratories in Florida and Colorado. It’s the kind of testing and transparency that Ward would like to see for all hemp products sold in Illinois.

In addition to state regulation, Ward would like to see federal testing and review by the Food and Drug Administration, which currently isn’t required. “Sellers have to be careful about any health claims they make for their products, no matter how well-known the health benefits are,” he says. “Scrutiny by the FDA could allow us to make factual claims about the health benefits of hemp extracts without running afoul of the law.” Federal oversight would also benefit the industry by reducing confusion caused by conflicting state laws and regulations. “In the end, it would reduce costs for everyone, while increasing consumer safety.”

Ward explains that Stoney Branch Farms is committed to long-term sustainability by using living soil, populated by beneficial bacteria and insects, rather than chemical amendments. Stoney Branch has invested in solar panels to reduce the farm’s carbon footprint. He says his family intends to be there for generations to come so they’re good stewards of the earth that sustains them.

Since the hemp grown at Stoney Branch Farms does not contain appreciable amounts of THC, the farm sources delta-8 THC from another hemp grower in Illinois and applies it to flower grown at Stoney Branch. This allows precise control of the amount of delta-8 THC contained in the flower and any other products with a Stoney Branch label. 

One of the retail outlets selling Stoney Branch Farms products is Prairie State Hemp, on the first floor of the Myers building on Washington Street between Fourth and Fifth Streets in Springfield. Bridget Shaw works behind the counter selling tinctures, edibles and vapes in the small corner shop. Prairie State Hemp also carries smokable flower, including the award-winning strains from Stoney Branch Farms. Shaw explains that ambiguity about the status of hemp derivatives has led to marketing headaches for the store.

“We do a lot of advertising on Facebook and Instagram, and rely upon those platforms to create awareness of our products,” she says. Meta, the parent company of both Facebook and Instagram, has strict guidelines regarding promotion of illicit drugs. As a result, Prairie State Hemp has inadvertently run afoul of the rules, leading to removal from the social media sites. When the store uploads photos of the retail space and the products they sell, they have to carefully avoid representations of cannabis leaves, since cannabis is still illegal under federal law. “We would get messages from Instagram saying ads were rejected for ‘sale of illegal drugs’ even though what we are selling is perfectly legal,” she said. The company had nearly 4,000 followers after two years in business, when Instagram disabled the company’s ability to boost any more posts. Prairie State Hemp was forced to use a new account and start attracting followers all over again. “We are up to 376 followers now,” she said, since another account managed by the company became its primary account in April.

Bridget Shaw also thinks regulation is a good idea, since it would allow Prairie State to raise its visibility without companies like Meta and TikTok dictating how they advertise. “TikTok has a strict rule prohibiting images of buds or plants,” she says. “For us, such a restriction is equivalent to a total ban.”