Albuquerque council passes ban on intoxicating hemp products that exceed federal THC threshold

The Albuquerque City Council voted Monday to restrict the sale of intoxicating hemp-derived products, citing concerns that children had too much access to the substances being sold on gas station and smoke shop shelves.

The council said the products, including delta-8 THC, delta-10 THC, and THC-A products, may have more THC in them than federally allowed.

The ordinance, which was sponsored by Councilor Dan Lewis and passed on a 7-2 vote, prohibits operating a business that chemically or synthetically alters hemp to exceed 0.3% THC. It also prohibits the sale, advertisement, offer for sale, or manufacture of the intoxicating hemp products.

That means purchasable items like gummies, cartridges for vape devices, drinks, hemp cigarettes and other hemp-derived products must have less than 0.3% THC, or else the business selling them could lose its license. It doesn’t apply to hemp products without THC or any legal cannabis.

Federal law allows the sale of hemp-derived products that contain less than 0.3% THC, although that is widely seen as a loophole in the U.S., where cannabis is still federally illegal. But some of those products have higher levels of THC, which, Lewis argued Monday, was a problem.

“This is a product that’s not being regulated by the state,” Lewis said. “It’s really poison that’s being marketed to children.”

No data was presented about how prevalent the products are. Visits to Albuquerque smoke shops and independent gas stations revealed that buying intoxicating hemp-derived products was easy to do and only sometimes required a license.

But questions abound about the future of the ordinance.

The 2018 Farm Bill, the federal government’s primary policy tool for regulating food and agriculture, as well as establishing the Supplemental Nutrition Assistance Program, removed hemp and its byproducts from the list of controlled substances. The same move allowed for the proliferation of cannabidiol (CBD) products.

However, the federal legislation made no mention of delta-8 and delta-10, which is derived from hemp, not cannabis, allowing companies to produce and sell items such as vape device cartridges, intoxicating hemp cigarettes and edible gummies.

Councilor Brook Bassan raised the question of enforcement during Monday’s meeting.

“Are we even going to be able to do this as a city?” Bassan asked.

Samantha Sengel, the chief administrative officer, said the city could not test the intoxicating hemp products and would, therefore, have to send them to a laboratory for testing.

She added that the city’s Environmental Health Department had concerns about achieving compliance from smoke shops, given the significant personnel commitment required to send inspectors to every smoke shop, gas station and CBD seller in the city.

“Everyone is in the fact-finding stage right now to know what that impact would be,” Sengel said before the council approved the measure, adding that they’d likely have to come before the council in the future to ask for money to fund enforcement mechanisms, whether that be more staff or more money.

Educating smoke shops and gas stations about the law change, another provision of the ordinance, would be accomplishable, Sengel said.

Councilor Tammy Fiebelkorn joined Bassan in opposing the bill.

“This is not a regulation. This is a prohibition,” Fiebelkorn said.