Governor Whitmer Enacts Changes to State Definitions of “Marijuana” and “THC” to Include Synthetic Derivatives

The use of so-called “synthetic marijuana” products, particularly by those not old enough to purchase “real” marijuana from licensed and regulated cannabis businesses in Michigan, has been a source of major concern among law enforcement, regulators, and legitimate cannabis businesses who see business stolen away by those who have skirted existing statutes by exploiting what had been considered by many to be a loophole in Michigan’s laws regulating the marijuana industry.

On Tuesday, July 13, 2021, Michigan Governor Gretchen Whitmer signed legislation making significant changes to how marijuana is defined and regulated in the state, including how the Marijuana Regulatory Agency (MRA) intends to regulate products containing synthetic cannabis derivatives.

Under Michigan’s prior definitions, “marijuana” was defined to include any part of the plant of the cannabis genus, while “industrial hemp” was defined as any plant of the cannabis genus with less than .3% “Delta-9 tetrahydrocannabinol” (“Delta-9 THC”). Delta-9 THC is the psychoactive component most responsible for the intoxicating effects of marijuana.

The changes enacted were intended to address the growing use, distribution and unregulated sale of products containing what is known as “Delta-8 THC.”  Delta-8 THC is similar to Delta-9 THC, but with a slightly different chemical makeup and structure, and is widely reported to provide a similar intoxicating effect as Delta-9 THC. Both Delta-8 THC and Delta-9 THC are naturally occurring within the marijuana plant. However, Delta-8 THC is almost always synthetically derived before it is added to “industrial help” products containing less than .3% of Delta-9 THC. The result is then sold as a “Delta-8” product so as to avoid the statutory definition of “marijuana” under the state’s regulatory framework.

The legislation amends the definitions of “marijuana”, “THC” and “industrial hemp” under the state’s regulatory scheme to close the loopholes that previously allowed the unregulated sale of Delta-8 THC products. In particular, HB 4517 revises the definition of “marijuana” under the Michigan Regulation and Taxation of Marihuana Act to specifically include all compounds containing more than .3% of THC, and creates a new definition of “THC” that includes any tetrahydrocannabolic acid, including synthetically derived products and isomers. The definition of “industrial hemp” was also amended in the Act to be consistent with these changes. HB 4740, 4741, 4742, and 4743, also signed, amends the Michigan Medical Marijuana Facilities Licensing Act (MMFLA), the Industrial Hemp Growers Act, the Marihuana Tracking Act, and the Public Health Code, to reference these newly amended definitions of “marijuana,” “THC” and “industrial hemp.”

As a result of these changes, effective October 11, 2021, products containing more than .3% of any THC product, including synthetically derived Delta-8 THC, will be considered “marijuana” products regulated by the state’s marijuana regulatory structure. Thus, all production, testing, transport, and sale of such products may only occur by licensed operators either under the MMFLA or the Michigan Regulation and Taxation of Marihuana Act (MRTMA). The legislation enacted on Tuesday does contain a provision where the MRA can exclude a particular tetrahydrocannibolic acid from the definition of THC if the MRA concludes, based on specific facts, that there was not a potential for abuse.

Other legislative changes enacted will allow expanded telemedicine for Michigan residents participating in the medical marijuana program, and directs the MRA to promulgate rules on the total amount of THC a product may contain.

The MRA has made a white paper about Delta-8 THC available on its website.

If you have any questions regarding the latest legislation, please contact a member of the Rhoades McKee Cannabis Law Services Team.

We would be happy to discuss your potential interest in issues regarding the growth, production, and sale of marijuana and hemp/CBD in Michigan with you. However, it is important to note that marijuana is still considered a Schedule 1 controlled substance under Federal law, regardless of the fact that its use has been approved for medical and recreational use in Michigan. Therefore, possessing, using, distributing, and selling marijuana are all federal crimes, and this post is not intended to give you any legal advice or to lead you to believe that marijuana is legal under federal law. Please also note that even though marijuana is illegal under federal law, persons or companies generating income from its use or sale will need to pay federal taxes just as though you are a legal entity.