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As political and legal space open for cannabis in state after state, the idea of caps on potency \u2014 whether of flower, extracts or edibles \u2014 is gaining currency among legislators. But voices in the cannabis industry view this as a phobic response rooted in the deeply flawed assumptions of prohibition.<\/p>\n
What does the science actually have to say on this question? Are legal maximums for tetrahydrocannabinol (THC<\/span>) content sound policy, or an updated version of \u201creefer madness\u201d?<\/p>\nPotency cap defeated in Florida \u2013 for now<\/h2>\n A proposed measure in Florida to cap the potency of medical marijuana failed to become law this year \u2014 much to the relief of the Sunshine State\u2019s cannabis community.<\/p>\n\nProposals to limit THC<\/span> levels are gaining momentum nationwide.<\/p>\n<\/aside>\nHouse Bill 1455, which was advancing through the Republican-led state Legislature this spring, would have limited the amount of THC<\/span> in smokable cannabis to just 10% by volume. That\u2019s considerably less than what most dispensaries offer to the state\u2019s 533,000 registered medical marijuana users. Edibles would have been limited to 15%, and extracts to 60%. Terminal patients would have been exempt from the limits \u2014 which implies that products exceeding the caps would still have been available on a highly restricted basis.<\/p>\nBut the Health Committee met for the last time this session on April 19 without hearing the bill, meaning it did not go to a floor vote.<\/p>\n
\u201cI think the bill is effectively dead,\u201d the sponsor, Rep. Spencer Roach (R-Fort Myers), conceded to the Miami Herald. \u201cAnything is possible \u2026 But right now I don\u2019t see a path forward.\u201d<\/p>\n
And indeed, the legislative session ended April 30, which means the bill will have to be introduced anew in the next session.<\/p>\n
Health concerns or \u2018reefer madness\u2019?<\/h2>\n In the political fight over the measure, Roach repeatedly invoked the state\u2019s deadly opioid abuse problem. For instance, he told Tallahassee\u2019s WFSU<\/span> in March: \u201c[J]ust like the opioid crisis, we saw it overprescribed and we saw this medication getting trafficked across state lines. We saw it ended up in our high schools and being sold to children.\u201d<\/p>\nThe Democratic opponents of the measure, and the cannabis industry, dismissed such concerns as \u201creefer madness.\u201d They emphasized that a deadly overdose on cannabis is impossible \u2014 in vivid contrast to opioids.<\/p>\n
Agriculture Commissioner Nikki Fried \u2014 Florida\u2019s only statewide elected Democrat and herself a medical marijuana user \u2014 was among those celebrating the demise of the measure. \u201cThank God for all of the activists that came up to Tallahassee, that signed the petitions. That\u2019s what democracy looks like: When we get together, we hear from the people, and legislation that would have hurt them is stopped,\u201d Fried told the Miami Herald.<\/p>\n
There are fears of a replay in the next legislative session. In 2020, the Florida House voted to pass THC<\/span> caps for medical marijuana patients younger than 21, in a measure attached to a larger healthcare bill. However, the cap was stripped out of the final version that unanimously passed that March.<\/p>\nRoach and Sen. Ray Rodrigues (also a Republican from Fort Myers), who sponsored the cap measure in the Senate this year, said they are undecided on whether to re-introduce the measures next session.<\/p>\n
\u201cI think the industry has done a very good job of spinning this narrative that \u2018Spencer Roach is trying to take away your medicine,\u2019\u201d Roach conceded to the Herald. \u201cI think we lost the battle for the narrative on this one.\u201d<\/p>\n
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THC<\/span> limits in other states<\/h2>\n<\/div>\n
Proposals to limit THC<\/span> levels, however, seem to be gaining momentum nationwide. Even in Colorado and Washington, the states that pioneered adult-use legalization with their successful ballot initiatives in 2012, legislators are debating whether to instate caps on cannabis potency. And the rhetoric is akin to that heard in Florida. Nor is it only coming from Republicans.<\/p>\nIn Washington, state Rep. Lauren Davis, a Snohomish County Democrat, has twice introduced measures to cap potency in concentrates sold to those under the age of 25. \u201cI don\u2019t think anyone conceptualized what would happen when \u2026 industry and science and business and the motivation of profit come into the state of Washington,\u201d she told Politico. \u201cAll of a sudden, a few years later, your shelves are stocked with these oils that are 99% THC<\/span>.\u201d<\/p>\nIn Colorado, Blue Rising Together, a Democratic-aligned organization launched to advocate for gun control legislation, is now also petitioning for cannabis potency caps.<\/p>\n
Vermont last October actually enacted potency caps in S.54, the act establishing a regulated adult-use market in the Green Mountain State. Under the law, flower is capped at 30% THC<\/span>, while concentrates are capped at 60%. Edibles have a 50-miligram limit per package, and 5-miligram cap per serving. These limits do not apply to medical marijuana or home-cultivated cannabis; nor to non-ingestible infused products, such as topicals. Gov. Phil Scott, a Republican, did not sign S.54, but declined to veto it \u2014 thereby allowing it to become law without his signature.<\/p>\nAnd Virginia\u2019s new legalization law, signed in April by Democratic Gov. Ralph Northam, gives the yet-to-be-seated Cannabis Control Authority the power to establish THC<\/span> limits.<\/p>\nTaxing by potency<\/h2>\n Then there is the idea of taxing by potency, which is also gaining currency. New York\u2019s new legalization law, signed at the end of March by Democratic Gov. Andrew Cuomo, instated taxation on the basis of THC<\/span> content, on top of a flat sales tax. This potency tax imposes 0.5 cents ($0.005) per one milligram of THC<\/span> in herbaceous flower, 0.8 cents ($0.008) per milligram in concentrates, and three cents ($0.03) per milligram in edibles.<\/p>\nThe legalization law in Illinois, signed by Democratic Gov. JB<\/span> Pritzker in 2019, also instates a potency-based tax structure. It imposes a 25% tax rate for products with THC<\/span> concentration above 35%, compared to 10% for products that fall below that threshold.<\/p>\nThe California Legislative Analyst\u2019s Office also recommended a potency tax in 2019, stating that such a policy \u201ccould reduce harmful use more effectively.\u201d<\/p>\n
And even on Capitol Hill, where bills to legalize cannabis nationwide are currently pending, the idea of potency caps is under consideration. The Senate\u2019s bipartisan Caucus on International Narcotics Control \u2014 headed by Dianne Feinstein (D-Calif.) and John Cornyn (R-Tex.) \u2014 suggested in March that federal agencies should consider recommending THC<\/span> limits.<\/p>\n<\/div>\n
Split in the medical establishment?<\/h2>\n As Tallahassee\u2019s WSFU<\/span> pointed out in its coverage of the Florida fight, physicians are among those pushing back against the potency crackdown. In a Zoom call as the bill was advancing in the Legislature, a group of Florida doctors who certify patients for medical marijuana cards challenged Roach\u2019s assertions.<\/p>\n\nThe potency scare is redolent of 1930s \u201creefer madness,\u201d which linked the marijuana menace to racist fears and fantasies of white America.<\/p>\n<\/aside>\n
Former emergency room physician Barry Gordon, who now owns the Compassionate Cannabis Clinic in Venice, said during the call:\u00a0 \u201cWe\u2019re not a pill mill, we\u2019re not an accessory to anybody\u2019s drug crisis. Patients are coming to me with three desires every single day \u2014 they want to feel the best they can; they want to do it in the safest, most natural, most plant-based, least pharma [way]; and most controllable \u2026 way that they can.\u201d<\/p>\n
But most media coverage portrayed a split in the scientific establishment about the risks of cannabis use in youth and young adults \u2014 meaning those through age 25.<\/p>\n
\u201cWhat happens is the endocannabinoid system \u2014 when it turns on \u2014 its effects last for just a few milliseconds to seconds. But when someone smokes cannabis, that system is turned on not for seconds to milliseconds, but for minutes to hours,\u201d Yale School of Medicine researcher Deepak Cyril D\u2019Souza told Politico. \u201cAnd so exposure to cannabis during these critical phases of brain development can be messed up, for lack of a better word.\u201d<\/p>\n
The reports also emphasized that THC<\/span> levels in cannabis flower have been increasing over the past decades \u2014 supposedly, from 4% in 1995 to 12% in 2014 in pot seized by federal agents. \u201cThis is not your Woodstock weed,\u201d Kevin Sabet, president of Smart Approaches to Marijuana, the anti-legalization group that seems to be agitating for potency caps as a rearguard strategy, told the Associated Press. \u201cWe need to put some limitations on the products being sold.\u201d<\/p>\nThe AP<\/span> also cited a 2017 study, \u201cThe Health Effects of Cannabis and Cannabinoids,\u201d by the National Academies of Sciences, which listed increasing potency among factors that \u201ccreate the potential for an increased risk of adverse health effects.\u201d<\/p>\nAP<\/span> balanced these fearful voices with quotes such as that from Cristina Buccola, a cannabis business lawyer in New York, who said: \u201cIt\u2019s prohibitionism 2.0. Once they start putting caps on that, what don\u2019t they put caps on?\u201d<\/p>\nPotency &<\/span> Psychosis<\/h2>\nHowever, much is left out of this presentation of the competing views. Whatever the unproven risks of cannabis use to the developing brain may be, does it necessarily follow that higher potency means a greater likelihood of harm?<\/p>\n
As some cannabis advocates have argued before, there is a case to be made that high-potency strains are actually beneficial, as they require users to smoke less<\/em> to achieve the same effect \u2014 sparing the lungs exposure to tar and carcinogens. The assumption that users of such strains are all getting significantly higher than did their parents or grandparents during the Woodstock generation is questionable.<\/p>\nYet this assumption appears to lie behind much of what is being misrepresented as objective science. The Denver Post on April 28 wrote: \u201cGrowing evidence shows high-potency THC<\/span> products are more likely to bring on or worsen mental health issues in young people.\u201d It backed up this claim by citing a July 2020 report from the Colorado Public Health Department, \u201cTHC<\/span> Concentration in Colorado Marijuana Health Effects and Public Health Concerns,\u201d which stated: \u201cWe found SUBSTANTIAL<\/span> evidence that THC<\/span> intoxication can cause acute psychotic symptoms, which are worse with higher doses.\u201d<\/p>\nAlso cited was a January 2021 study in the Journal of the American Medical Association, which (in the Post\u2019s paraphrase) \u201cfound elevated risk of self-harm among young people who misused cannabis.\u201d<\/p>\n
But this may all be based on erroneous assumptions. After an outburst of media hype about a possible psychosis link to high-potency \u201cskunk\u201d strains a few years ago, critics even within the scientific community pointed out that studies finding such a link could be confusing mere correlation with causality. Those struggling with psychotic symptoms or an urge to self-harm may be (consciously or not) self-medicating with cannabis. So words like \u201cmisuse\u201d may be essentially reading things backwards.<\/p>\n
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Racism &<\/span> the politics of potency<\/h2>\nThe bizarre case in France of the admitted assailant in a clear-cut anti-Semitic murder avoiding criminal charges on the basis of \u201ccannabis-induced psychosis\u201d does indeed point to re-emergent reefer madness. But the cannabis stigma is more often used to convict than acquit, at least in the court of public opinion \u2014 and especially on the U.S.<\/span> side of the Atlantic.<\/p>\n\nAllegations of cannabis use have often been an issue in the posthumous stigmatization of victims of racially biased police killings.<\/p>\n<\/aside>\n
In the famous case of George Floyd, which sparked the Black Lives Matter uprising last May, it was his supposed use of methamphetamine that was invoked by Minneapolis authorities in what Floyd\u2019s family dismissed as a \u201cred herring.\u201d More often, cannabis has been the substance at issue in the posthumous stigmatization of the victims of racially biased police killings.<\/p>\n
Some of the most notorious cases of recent years:<\/p>\n
\nIn July 2016, Philando Castile was killed by a cop during a traffic stop in the Twin Cities area. The cop won his acquittal partly on the basis of the allegation that Castile had been high on cannabis at the time of the shooting. No cannabis was found in the vehicle, but it was touted that a blood test posthumously performed on Castile came back positive for THC<\/span>.<\/li>\nIn July 2015, Sandra Bland was found hanged to death in her Texas jail-cell after a traffic stop. Authorities made much of the fact that her autopsy showed she\u2019d been using cannabis. Her death was ruled a suicide \u2014 to the outrage of her family.<\/li>\n In August 2014, Michael Brown was killed by police in Ferguson, Mo., sparking the first national Black Lives Matter demonstrations. A copy of Brown\u2019s autopsy was leaked to the St. Louis Post Dispatch, which ran the following headline: \u201cOfficial autopsy shows Michael Brown had close-range wound to his hand, marijuana in system.\u201d This was again assailed as an effort to stigmatize the victim.<\/li>\n And in February 2012, 17-year-old Trayvon Martin was killed by vigilante George Zimmerman while walking home from buying Skittles in Sanford, Fla. Zimmerman was notoriously acquitted on the bizarrely implausible basis of self-defense. His defense team attempted to introduce as evidence that the youth\u2019s autopsy had shown trace amounts of THC<\/span> in his bloodstream. The lawyers won approval from the judge to admit this as evidence, and the lead attorney actually told the media that even a small level of THC<\/span> in the bloodstream could increase violent behavior. The toxicology report indicating cannabis use was ultimately not submitted to jurors, probably because the lawyers judged that it wouldn\u2019t fly \u2014 a small victory for common sense, at least.<\/li>\n<\/ul>\nSo there are weightier political implications to the potency question than either side in the debate may acknowledge. Especially when the dubious notion of cannabis-induced psychosis is invoked, the potency scare does seem all too redolent of 1930s \u201creefer madness,\u201d in which the marijuana menace was blatantly linked to the racist fears and fantasies of white America.<\/p>\n
Stigma versus science?<\/h2>\n Project CBD<\/span> turned to Nashville-based neurobiologist Greg Gerdeman, PhD, for some clarity on the potency question.<\/p>\n\u201cThe focus on percentage of the composition is misguided,\u201d Gerdeman tells Project CBD<\/span>. \u201cIt comes from arbitrary origins, like deciding that hemp is cannabis with 0.3% THC<\/span> or less. Potent cannabis and preparations of cannabis have been around for a very long time, and highly potent THC<\/span> products have been approved as medicine, especially Dronabinol.\u201d That\u2019s the legally available anti-nausea medication marketed in the US<\/span> as Marinol \u2014 which is about 90% THC<\/span>. It comes in doses of up to 10 milligrams THC<\/span> per pill.<\/p>\nPercentage of THC<\/span> does not necessarily correlate with how powerfully one could be intoxicated if one consumes a given product. \u201cIt can be used safely,\u201d Gerdeman explains. \u201cIf you\u2019re concerned about over-consuming, what\u2019s at issue is how many milligrams of THC<\/span> \u2014 not the percentage of them.\u201d<\/p>\n\u201cWith a more concentrated product, it\u2019s reasonable to think you can get to that higher level more quickly,\u201d Gerdeman concedes. \u201cIt\u2019s not that I think percent values are meaningless. But one can consume a small amount of a high-percent THC<\/span> product and still consume a low number of milligrams functionally. People have been able to successfully titrate their consumption that way for as long as people have been consuming hash oils and other extracted products. And these things are not as new as the opponents like to present.\u201d<\/p>\n\u201cPotent hash and hash oil have been around,\u201d he elaborates. \u201cVarious cannabis-based medicines that were widely available before prohibition included tinctures and infusions and syrups that were distilled or reduced extracts of cannabis. And they were even at times favored for their potency by doctors \u2014 for ease of reaching a therapeutic dose and, I suspect, greater reliability.\u201d<\/p>\n
Gerdeman points to a book in his personal collection, a hefty volume entitled The United States Dispensatory, 22nd and Centennial Edition<\/em> by Wood &<\/span> LaWall, published by Lippincott in 1937 \u2014 the same year the federal government effectively outlawed cannabis. Surprisingly, it makes note of commercial imports of cannabis to the United States from India, for medicinal use, stating: \u201cCannabis is used in medicine to relieve pain, to encourage sleep, and to soothe restlessness \u2026 [I]n some persons it appears to produce a euphoria and will often relieve migraine headaches.\u201d<\/p>\nIt\u2019s paragraph on the potency question is revealing: \u201cOne of the great hindrances to the wider use of this drug is the great variability in the potency of different samples of cannabis which renders it impossible to approximate the proper dose of any individual sample except by clinical trial. Because of occasional unpleasant symptoms from unusually potent preparations, physicians have generally been overcautious in the quantities administered. The only way of determining the dose of an individual preparation is to give it in ascending quantities until some effect is produced. The fluid extract is perhaps as useful a preparation as any; one may start with two or three minims of this three times a day, increasing one minim every dose until some effect is produced.\u201d (A minim is one sixtieth of a fluid dram, or one drop of liquid.)<\/p>\n
\u201cIn other words, start low and go slow<\/em>,\u201d Gerdeman interprets. \u201cIt\u2019s basically describing the state of knowledge we have 80 years later \u2014 start low and tritate up. Having consistency in the potency of the medicine is more important than setting arbitrary caps.\u201d<\/p>\n<\/div>\n