Hemp store highlights limits to state's marijuana laws

Wild West Wellness sells multiple forms of intoxicating hemp, and is located within Great Falls' downtown core business district.
Wild West Wellness sells multiple forms of intoxicating hemp, and is located within Great Falls' downtown core business district.

Following two elections, a district court order and more than a year of legal wrangling the City of Great Falls has begun the process of licensing marijuana dispensaries seeking to operate within city limits.

According to the City’s Department of Planning and Community Development applications from two state licensed marijuana dispensaries are currently being processed.

One, Top Shelf Botanicals, will be located in the Wheat Building at 750 6th St. SW, just east of the Hickory Swing Golf Course and south of the BNSF rail yard. The other, Great Northern Naturals, has applied to occupy a portion of the building at 1700 Vaughn Road on the far western edge of town, tucked in-between the NW Bypass and Interstate 15 and adjacent to Woyth's Wrecking Yard. Both these locations lie within areas zoned Industrial, as required by Great Falls zoning ordinance. Neither is currently operating or open to the public.

There is, however, one business that from all outward appearances resembles a dispensary, and which is openly selling what appears to marijuana flower, edibles, and distillates within Great Falls city limits. Wild West Wellness opened its doors to the public nearly a month ago at a surprising location, right downtown in a building that formerly housed the Hearing Aid Institute.

It seems to be a glaring contradiction. Great Falls’ zoning ordinance specifically limits marijuana businesses of all types to operating within the city’s industrial zones. Wild West Wellness’ storefront at 725 1st Ave. N lies in the City’s core business district, four blocks from the Cascade County Courthouse and just a block away from the First English Lutheran Church.

How is this possible? Why would the City of Great Falls issue a business license to a marijuana dispensary that is contrary to the zoning code it just established?

The short answer is because what Wild West Wellness is selling technically isn’t marijuana at all, but rather a form of “intoxicating hemp” — a product sometimes referred to as “marijuana lite” or “diet weed.” Neither Great Falls nor the State of Montana currently have the regulatory authority to prevent Wild West Wellness from selling this product.

“There are no national licensing requirements around extraction, manufacturing, or the sale of hemp-derived products,” explained Kristan Barbour, Administrator of Montana’s Cannabis Control Division. “There are also no federal testing requirements for cannabinoid hemp consumer products, and there are no federal requirements for packaging and labeling, or for disclosure of THC content on product labels.”

“We are aware of this business (Wild West Wellness) and we have received many emails concerning them,” she continued. “By all intents and purposes it appears to be a fully operational dispensary, but because they are not licensed by us, they do not fall under our regulatory purview. We don’t have any ability to go in and do an inspection on those products.”

Great Falls City Attorney David Dennis said “the City is currently investigating the activities of Wild West Wellness,” but was not at liberty to comment further regarding the City’s investigation or contemplated actions.

Similar to, but unlike marijuana

The intoxicating hemp sold by Wild West Wellness closely resembles marijuana flower sold by licensed marijuana distributors.
The intoxicating hemp sold by Wild West Wellness closely resembles marijuana flower sold by licensed marijuana distributors.

Intoxicating hemp is similar to marijuana in that both hemp and marijuana are derived from the cannabis sativa plant. Their difference lies within their specific chemical compositions.

“Hemp,” as most people know it, is commonly used to make textiles, biofuels and wellness products like CBD oil. “Industrial hemp” was legalized by the federal government as part of the 2018 Farm Bill, which defined hemp as cannabis containing less than 0.3% delta-9 tetrahydrocannabinol (THC), the intoxicating substance found in marijuana.

The loophole that makes intoxicating hemp legal and unregulated in Montana is that it uses a different form of THC, the delta-8 variant, to produce its intoxicating effects. The delta-8 variant of THC was not specifically identified within the 2018 Farm Bill and is therefore unregulated and legal.

“The Delta-8 compound is derived from hemp and its synthetically produced,” explained Devin Keller, Inspection Supervisor for the Cannabis Control Division. “This hemp derived flower is not tested, and people need to be aware that we really don’t know what’s going on there (at Wild West Wellness). There are no sideboards for this business. It’s definitely something to be aware of.”

This lack of oversight within the 2018 Farm Bill has not gone unnoticed or unchallenged. In 2020 a California e-cigarette manufacturer sued to stop a rival manufacturer from making e-cigarette and vaping products containing delta-8 THC, arguing in part that federal law forbade its possession and sale.

However, in 2022 a three-judge panel of the Ninth Circuit Court of Appeals ruled that federal law does not explicitly prohibit the manufacture and sale of delta-8-THC products so long as they are initially sourced or extracted from hemp. The Court declined to weigh in on whether it was Congress’ intent to legalize such products but noted that if the 2018 Farm Bill had inadvertently created a loophole, “then it is for Congress to fix its mistake.”

According to both the Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA), intoxicating hemp is more than just an annoying legal loophole, it may also a pose a significant public health risk.

“A wide variety of delta-8 THC-containing products have entered the marketplace, including, but not limited to, vapes, smokable hemp sprayed with delta-8 THC extract, distillates, tinctures, gummies, chocolates, and infused beverages,” the CDC warned in a 2021 health advisory. “In addition, because testing methods for products like synthetically derived delta-8 THC are still being developed, delta-8 THC products may not be tested systematically for contaminants such as heavy metals, solvents, or pesticides that may have adverse health effects.”

The FDA reports that since Jan. 2021, national poison control centers have received 2,362 reports of adverse health effects resulting from the ingestion of delta-8 THC containing products. Seventy percent of these required a trip to the hospital, and of those 8% required admission to a critical care unit. One case in a juvenile resulted in death.

A lack of consumer product information

One major problem with intoxicating hemp products is that they are not subject to the same labeling requirements that marijuana is, so consumers may not be fully aware of what they’re getting or how potent it is.

“Delta-8 THC is naturally occurring within the cannabis plant, but only at very low levels,” Barbour explained. “When someone can concentrate those levels of delta-8 they can create a very significant ‘high’ that does mimic the effects of the delta-9 THC in naturally occurring marijuana. What we’re finding is that consumers are confused. They’re assuming that when they buy a product advertising delta-8 or delta-10 that these are marijuana products, when what we’re really talking about is a hemp derived product or a semi-synthetic hemp derived product.”

“What we’re hearing is that there are overdoses by teenagers that are presenting that they’ve had a ‘marijuana’ overdose,” she said of the situation in Montana, “but we can’t tell if its marijuana or if its an intoxicating hemp product until we actually get to the packaging and labeling."

“Licensed marijuana dispensaries are required to provide the potency information from testing results clearly displayed on the product package,” Barbour added. “There should be a QR code on the label linking directly to the full testing results of the package being sold. They are required to list the cultivator, manufacture, and lab information on the label, and childproof exit packages with warning labels are required for all products sold from a licensed dispensary.”

The product packaging from Wild West Wellness does not include a QR code, and only limited information regarding the product’s chemical makeup. There is no labeling to indicate that what you are buying is hemp and not marijuana, and there’s no childproof packaging. Customers leave the store carrying their product in a paper bag.

“With these intoxicating hemp products there are no federal or state standards for packaging and labeling or for testing,” Barbour said. “We don’t know what intoxicating hemp products do to the body. If it were me, I’d want to make sure that I’m consuming something that I know to be safe. Intoxicating hemp falls outside of that right now."

Dodging the cannabis tax

Equally galling for Wild West Wellness’ competitors is that because they are not licensed by Montana’s Cannabis Control Division, they do not pay the substantial cannabis taxes required by the Montana Department of Revenue of licensed marijuana businesses.

“The state licensed dispensaries who are questioning how this is happening - if I were one of them, I’d be really frustrated because they are the ones playing by the rules, they are paying the taxes, they are the good actors, and this intoxicating-hemp business model kind of flies in the face of all of that,” Barbour said. “There’s a public trust that the regulated marijuana industry has built, and it was built with a lot of blood, sweat and tears. Those people who are operating in the regulated marijuana industry have paid that price and so consumers trust them, and they trust that the products they are buying are safe.”

"Then there’s this business that works outside of that channel that really can erode the trust that the legitimate marijuana industry has built,” she added. “As a regulator, that's really hard to watch.”

However, the tide may be beginning to turn when it comes to intoxicating hemp. Both Oregon and Colorado have placed an outright ban on delta-8 products, and several other states have enacted laws to regulate its production, sale, testing, distribution and labeling. According to Barbour, legislative action in Montana may be the swiftest and most effective strategy to get a rein on intoxicating hemp.

“What we’re finding is that the intoxicating hemp industry is very innovative,” she noted. “Montana in general is really trying to find a definition that will encompass all the current and future analogs that we’re seeing that appear sometimes weekly.”

“City officials should be talking with their state officials and really trying to create some legislation around these types of products to help prevent future issues like this from evolving – making sure that the consumer is protected and that these types of businesses are legitimate in our state,” Barbour added. “Now is the opportune time because the legislature is in session, and they are highly aware of this issue. We have brought if forward to them about the intoxicating hemp challenges that we are facing in Montana.”

How to be an informed consumer

Barbour said there are a few things every consumer should look for to ensure they are buying marijuana products at a state licensed dispensary instead of intoxicating hemp from an unregulated store.

“Whenever someone goes into a dispensary they need to ask to see the state license, that should be hanging on the wall, to prove that the business is legitimately regulated and licensed by the state of Montana," she said. "Everything should be transparent. You should know what you’re consuming, and you should know where it came from. If you’re getting packaging and labeling that does not have that information you should be inquiring as to why it doesn’t."

"Consumers need to know that what they are purchasing and ingesting are safe marijuana products from a licensed, regulated marijuana dispensary," added Keller. "You can find a list of all licensed marijuana businesses in Montana at the Cannabis Control Division website, www.mtrevenue.gov/cannabis/. That list is updated monthly."

This article originally appeared on Great Falls Tribune: Great Falls Wild West Wellness highlights limitation of marijuana laws