Loophole Helps America Get High

Cornbread’s Jim Higdon Photo: Cornbread Hemp

How Congress stumbled into delivering a buzz

Months after U.S. states scrambled to close a loophole that allowed psychoactive cannabis to be sold in gas stations across the U.S., even where marijuana is illegal, a second loophole is being exploited.

Here it is in a nutshell, according to Jim Higdon, the founder of Cornbread Hemp: The 2018 U.S. farm bill that legalized hemp, introduced by Senator Mitch McConnell, allows hemp-derived CBD to contain up to 0.3% THC by dry weight. Oils and gummies are so dense compared with dry marijuana, however, that you can add enough THC to pack a significant punch without technically violating that rule.

Cornbread Hemp, based in Louisville, Kentucky, is taking advantage of that by shipping gummies with high amounts of THC — the ingredient in marijuana that gets users high — into dozens of U.S. states, including those without medical or recreational programs. It is one of a what seem to be a handful of small companies flouting the gap between federal laws that govern hemp and those that govern marijuana.

Their success shows just how hard it is for U.S. laws to keep up with a little-regulated industry where the science on how to extract and convert psychoactive substances is still evolving.

“Mitch McConnell accidentally legalized weed gummies,” Higdon told me in a phone interview. “It’s not as much a loophole as it is a math issue.”

A Drug Enforcement Agency spokeswoman referred questions to the Food and Drug Administration, saying it has to do with a consumable product, which falls under that agency’s purview. The FDA, which didn’t immediately respond to a request for comment, has in the past declined to regulate CBD, leaving a cloud of uncertainty over the industry. McConnell’s office didn’t immediately return a request for comment.

2 milligrams of THC
Cornbread, which launched in 2019, increased the THC content of its oils last April and its gummies in October. Its gummies now contain 50 milligrams of CBD, a nonpsychoactive component of cannabis promoted in wellness products, and 2 milligrams of THC, Higdon said.

A few other small companies that advertise high-THC gummies online didn’t return messages seeking comment about whether they sell them in states that don’t have marijuana programs.

Larger CBD companies said they stick to roughly the same ratios of THC that naturally occur in the hemp plants from which they derive their products. “Essentially, full spectrum is the hemp plant blended up with minimal processing during the production,” a spokeswoman for CbdMD Inc. said in an email.

Charlotte’s Web Holdings Inc.’s gummies have around 0.4-0.5 milligrams of THC per serving on average, or about 0.01%. “Charlotte’s Web does not support the marketing and sales of high-THC products, under the guise of the hemp name, for any intoxicating value or euphoric effect,” said Cory Pala, the company’s director of investor relations.

Cornbread’s dose pales next to the 9 milligrams of THC seen in gummies in legalized states, but it’s enough to give a buzz, especially if people take more than one. For context, a guide by Leafly, a maker of cannabis goods, says that after 2.5 milligrams of THC, a user can expect euphoria, impaired coordination and altered perceptions.

Packing a wallop
Josh Wurzer, founder of cannabis-testing company SC Labs, said that the 0.3% limit by weight indeed allows some gummies to contain a wallop; a 5-gram gummy, for example, could legally contain 150 milligrams of THC, which is 15 times the amount that California considers a standard dose. However, most of his clients are actually trying to avoid tangling with federal law by having extremely low levels of THC, Wurzer said. “That’s why they do the testing in the first place.”

Cornbread, with just 12 employees, sells in about 150 retailers in a dozen states and brings in about $300,000 a month in online sales. So far it has yet to run into issues with the U.S. postal system or the USDA agency that certifies its products as organic, Higdon said.

Exploitation of the “dry weight” loophole comes after more than a dozen states banned a chemical cousin of THC known as Delta-8. Companies had been using it to circumvent the federal prohibition on regular THC, selling it in gas stations across the U.S. — much of it contaminated with metals.

Cornbread’s products don’t raise concerns about the same contaminants as Delta-8, according to Higdon, because they’re USDA-certified organic. In fact, that’s one benefit of getting THC from hemp, he said: As a federally legal crop, hemp can earn that certification, while federally illegal marijuana can’t.

Despite Cornbread’s cheeky attitude to the math in McConnell’s legislation, Higdon said he actually appreciates what it’s done for consumers. In a recent promotional video, he compared CBD gummies without THC to a table that had been deprived of a perfectly good leg.

“This is not about giving the finger to Mitch McConnell,” Higdon told me of the company’s use of the loophole. “It’s about expressing gratitude that he legalized a small amount of THC.”