by Ned Oliver, Virginia Mercury
February 2, 2022
The Lucky Charms cereal bars for sale at Sen. Louise Lucas’ cannabis shop in Portsmouth feature a stoned cartoon leprechaun and a warning that it “contains cannabis, a Schedule 1 controlled substance.”
The label, it turns out, is only partially accurate.
Lab testing shows the marshmallow treat does contain delta-9 THC — the main intoxicating ingredient in pot — which remains illegal to sell in Virginia even after lawmakers legalized marijuana possession last year.
But the packaging overstated the bar’s potency, suggesting it contained 600 milligrams of total THC while the lab test showed just under 30 milligrams.
Both issues — the mislabeled product and the presence of a controlled substance — are typical of the black and gray market for retail marijuana that has exploded in Virginia since lawmakers legalized possession of the drug but not sales.
The resulting demand for marijuana products has presented an opportunity for entrepreneurs willing to take a risk, but left customers with little assurances as to the quality and contents of the mostly-synthetic THC products that have been popping up in gas stations, health food stores and dedicated retail outlets like the one co-owned by Lucas, who as president pro tempore of the Virginia Senate is the most powerful elected Democrat in state government.
“What concerns me is that people don’t know what they’re taking,” said Michelle Peace, a forensic science professor at VCU who has drawn nationwide recognition for her research in the field. “The products are not quality tested but consumers are trusting they are made in a sanitary environment and that the label is accurate.”
Marijuana sold by Virginia’s four licensed medical marijuana dispensaries, which are only open to people with prescriptions, is subject to stringent testing requirements. But there are no such standards in place for retailers like Lucas, who in a brief interview at the Capitol this week expressed surprise that her shop was selling products advertised as containing a controlled substance.
“I sell hemp products and CBD,” said Lucas, who co-sponsored the marijuana legalization bill last year and has touted her cannabis shop in an effort to boost her Twitter account. At her request, the Mercury emailed her questions but she did not respond.
The products for sale in Lucas’ shop, the Cannabis Outlet, are in line with the broader market, according to Peace, who analyzed two samples from the senator’s store on behalf of the Mercury and recently conducted a separate review of 66 products purchased in other stores around the state.
Nearly all of the products Peace’s lab tested as part of the wider review were marketed as containing delta-8 THC, a compound that is nearly identical to delta-9 THC, but which is synthetically manufactured from industrial hemp. Producers argue delta-8 is technically legal despite the fact that it offers an intoxicating high similar to traditional marijuana.
Lab tests showed that all but one of the 66 products were inaccurately labeled:
- 25 contained illegal amounts of delta-9 THC, which is capped at .3 percent under federal and state laws governing hemp extracts;
- 22 claimed to contain THC but contained almost no cannabinoids — legal or not;
- 19 had less total THC than advertised and four had more than the label suggested;
- One was a delta-9 THC product apparently manufactured in a state where sales are legal with a delta-8 sticker placed on the packaging.
The products were collected by Virginians for Safe Cannabis from businesses around Northern Virginia, the Richmond region, Hampton Roads and Roanoke. The advocacy group includes medical producers, consumer advocates like Virginia NORML and other industry stakeholders. Peace, who presented the research to the General Assembly on Tuesday, said it represents one of the broadest surveys of unregulated THC products to date.
She told lawmakers that the inaccurate labeling and inconsistency among products make it almost impossible for consumers to safely dose the drugs. Some samples also presented potential health and sanitary concerns.
Peace said many of the edible products from the survey were commercial baked goods sprayed with a cannabis extract, sometimes still containing detectable levels of the industrial solvents used in the manufacturing process. In the case of a package of doctored Chips Ahoy cookies, cannabis contents varied widely between products and a human hair was found stuck to the sticky coating, she said.
And Peace said she was particularly alarmed by a package of “smokable hemp” cigarettes that contained shredded paper coated with an intoxicating cannabis extract.
‘We can’t police every gas station’
Even if the products were accurately labeled and contained just delta-8 THC, state officials do not consider them legal.
The Virginia Department of Agriculture and Consumer Services, which is tasked with regulating the hemp industry, considers delta-8 “an adulterant as a food ingredient” and conveys this to hemp manufacturers that “indicate an interest in producing food products” containing the drug.
But a spokesman said in a statement that the products are being so widely sold that there’s nothing they can do about it.
“Given the proliferation of delta-8 THC products in the retail marketplace, the agency does not currently have the enforcement resources to effectively remove all products under the agency’s jurisdiction from retail establishments,” said Michael Wallace, an agency spokesman, in an email.
He did not respond to a question about whether the agency has ever pursued an enforcement action related to the drug.
Likewise, law enforcement agencies around the state appear to have collectively decided to tolerate the sales. They cite the complexity of enforcement, which would require testing of every product to prove its contents. They also say lawmakers in the General Assembly have clearly communicated that they don’t think marijuana enforcement should be a priority.
“Enforcement of marijuana never was a high priority,” said John Jones, director of the Virginia Sheriff’s Association. “Now given public sentiment, lack of resources and a complicated law, I think law enforcement are focusing on enforcement issues that folks care about.”
Police departments shared a similar sentiment. In the small town of Galax, Police Chief DeWitt Cooper said his officers have enough trouble keeping up with potent drugs like fentanyl.
“We can’t police every gas station,” he said. “Because they’re selling it as hemp, we can’t say otherwise unless we start buying all this stuff and testing it. For me, it’s gotten out of control.”
Lawmakers debate market’s future
State lawmakers are actively debating how to legalize retail sales of marijuana. Currently the only legal avenue to obtain marijuana is to either grow it yourself or get it as a gift.
Front and center in the discussion is the role of the industrial hemp manufacturers in the synthetic cannabis products they are producing.
Some hemp producers are lobbying to be licensed early alongside medical processors to begin licensed retail sales of marijuana next year.
Others are simply urging lawmakers to allow synthetic THC sales to continue in places like gas stations even after licensed marijuana shops open. They argue the products could be sold safely with the addition of testing and labeling requirements.
“We would support reasonable regulations and age restrictions,” said Dylan Bishop, a lobbyist for the Cannabis Business Association of Virginia.
Meanwhile, some lawmakers are pursuing legislation that would eliminate any legal ambiguity surrounding delta-8 THC sales with new regulations. Among them is Del. Dawn Adams, D-Richmond, who worried that consumers buying the products don’t know what they’re getting.
“Many people who early this summer thought they were getting a form of CBD were unexpectedly and unhappily high,” Adams said. “We should all care that consumers know what they are putting into their bodies.”
A lawmaker’s cannabis shop
Lucas, who opened the “Cannabis Outlet” last year with a business partner after possession of marijuana was legalized, is poised to be a deciding vote on the issues when they come before the Senate, where Democrats hold a one-seat majority. Under Virginia’s conflict of interest laws, lawmakers are generally permitted to vote on matters that affect their businesses.
She has used her status as a state lawmaker and co-patron of the state’s marijuana legalization bill to promote the business in television news interviews and, more recently on Twitter.
“I’m a 78 year [old] grandma who legalized pot and now has her own cannibis (sic) store,” she wrote in a tweet last week. “And I’m the last thing standing between The GOP and total control of Virginia.”
In a subsequent tweet she added, “Did I mention my store is on High Street in Portsmouth.”
As of last week, the shop boasted an inventory that ranged from vape pens to infused slushies. Free samples of cannabis-laced Doritos and Cheetos sat in cups on a counter. A handful of the products were labeled as containing delta-8. Others had the same label as the aforementioned Lucky Charms bar, warning that the products contained a controlled substance. Other products had no labels.
The employee working behind the counter did not provide clear answers when asked what the various products contained.
The Mercury had two products analyzed — the cereal bar and a vape cartridge that claimed to be lab tested but offered no indication of what was inside. Peace, the VCU forensic scientist, said both appeared to be synthetic cannabis products and while both contained delta-8 THC, both also contained quantities of delta-9 THC that would make them plainly illegal to sell in Virginia.
In the case of the vape pen, which was branded “Capt’n Kush Farms,” the combined quantity of delta-8 (359 mg) and delta-9 THC (139 mg) put it on par with the strength of products sold in the state’s regulated marijuana dispensaries.
The cereal bar was labeled, but contained far less total THC than advertised — 19 mg of delta-8 THC and 8 mg of delta-9 THC — which taken together is the equivalent of just under three doses under current state law governing the medical marijuana market.
Selling marijuana in Virginia remains a felony, with punishments ranging from one year in prison to life depending on the amount sold.
Despite her recent tweets, Lucas declined this week to discuss the shop in person.
“I will talk to you, because I’ve been waiting for this, and I’ve got a lot to say,” she said, requesting the Mercury email her questions.
At Lucas’ request, the Mercury emailed a detailed account of its reporting and questions related to the industry. Lucas and her staff did not respond, but she did issue a tweet criticizing a Mercury reporter for attempting to interview her in person on Capitol Square, which is a common practice.
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