“This memo really crystallizes the issue and really makes clear what they’re intending to do…And I think what they’re intending to do is illegal.”
By Rebecca Rivas, Missouri Independent
The Missouri Hemp Trade Association filed a lawsuit Friday in Cole County Circuit Court to stop the governor’s ban on all intoxicating hemp food and drinks from taking effect Sunday.
The action comes in response to a memo the Missouri Department of Health and Senior Services sent to food retailers on Thursday detailing how the ban will play out.
“This memo really crystallizes the issue and really makes clear what they’re intending to do,” said Chuck Hatfield, the association’s attorney. “And I think what they’re intending to do is illegal.”
On August 1, Gov. Mike Parson (R) signed an executive order to remove all hemp-derived THC edibles and beverages from store shelves and threatening penalties to any establishment that continues selling them.
Because hemp isn’t a controlled substance like marijuana, there’s no state or federal law saying teenagers or children can’t buy products, such as delta-8 drinks, or that stores can’t sell them to minors, Parson said.
And there’s no requirement to list potential effects on the label or test how much THC is actually in them. State lawmakers have failed to pass such requirements the last two years.
Parson said the main target of his order are companies that sell intoxicating hemp edibles that mimic popular candy. However, hemp industry leaders argue the order also bans products that aren’t attractive to children, have gone through lab testing and are only sold to customers 21 and up.
According to the memo, the order directs regulators “to identify food that contains unregulated psychoactive cannabis products as deleterious, poisonous and adulterated.”
The department has the authority to do this, Parson’s order states, because of a state law regarding the process to deem a food product adulterated.
However, Hatfield notes the same law also states that, “a food shall not be considered adulterated solely for containing industrial hemp, or an industrial hemp commodity or product.”
That line was added to Missouri’s law in 2018, after Congress legalized hemp as part of the federal Farm Bill. It was part of a Missouri House bill that brought the state’s definition of hemp in alignment with the federal government’s.
“We’re going to point out that the department lacks the authority to ban psychoactive cannabinoid hemp products across the board, as they’re doing,” Hatfield said. “Hemp products are not adulterated under Missouri law.”
Lisa Cox, spokeswoman for DHSS, addressed the line Hatfield referred to in the state law.
“We are not talking about simply industrial hemp,” she said. “What we are dealing with are chemically converted hemp-derived cannabinoids which are included in almost every hemp-derived intoxicating product on the market today.”
Embargoed products
Hatfield also argues an executive order cannot trump a state law when there are no administrative rules in place to back it up.
Last week, Secretary of State Jay Ashcroft rejected the Division of Alcohol and Tobacco Control’s proposed emergency rules that would’ve given the division the authority to enforce DHSS’s embargo at places licensed to sell tobacco or alcohol.
And now the rules will have to go through the standard process which could take six months, Parson said in a strongly-worded letter to Ashcroft last week.
There will be a public-comment period followed by a debate among the members of the Joint Committee on Administrative Rules, a 10-member body made up of state representatives and senators.
However, Cox said the rules don’t need to be approved for the ban to go into effect for places that provide food to the public.
Food is defined as an edible substance, ice, beverage, chewing gum or an ingredient used in these products, the memo states.
“The governor has directed DHSS to use our current authority to enforce these products under the Missouri Food Code, which would not require the emergency rule,” Cox said.
According to the memo, the department will begin to inspect facilities for compliance after Monday and will heavily rely on complaints received through the department’s online form.
The highest priority will go to complaints received from health officials, including at poison control centers and local public health agencies. Next will be referrals from law enforcement officials. Complaints about products marketed to children will also be prioritized, the memo states.
If unregulated psychoactive cannabis products are found during an investigation, the department will “request voluntary compliance, including destruction of the products,” it states.
“If voluntary compliance is not achieved, products will be embargoed and held on the premises until a court order for destruction is obtained,” the memo states.
Hatfield said the department doesn’t have the authority to “pull things off the shelves.”
If people don’t take products off the shelves voluntarily, Hatfield said, then regulators will embargo it, “which means putting a sticker on it.”
Under the state law, DHSS regulators would have to go to each retailer individually and put an embargo tag on the products they’ve deemed “adulterated, or so misbranded as to be dangerous or fraudulent.”
Then the department would have to go before a circuit court judge to petition that the products need to be embargoed. If the judge sides with regulators, the products are destroyed. If not, the tag is removed and the product is considered legal to sell.
The order also means no Missouri business can manufacture these products within the state, Cox said.
The department’s main focus, she said, will be on protecting children “by prohibiting sales of unregulated psychoactive cannabis products.”
“We believe that will take the majority of our time and resources to enforce,” Cox said. “However, the enforcement authority outlined in state statute allows us to address manufacturing issues as needed. We’ll be working with businesses on a case-by-case basis as they have questions about manufacturing.”
This story was first published by Missouri Independent.
Photo courtesy of Kimzy Nanney.
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