An effort to regulate intoxicating hemp could have had detrimental effects for thousands of Colorado kids who suffer from epilepsy and other debilitating conditions.

But the bipartisan group of lawmakers who sponsored Senate Bill 271 found a way to address those concerns and still put a stop to a product that many claim is dangerous, especially to kids.

Senate Bill 271 is the outgrowth of 2022 legislation that set up a task force to look at intoxicating hemp products and make legislative and rule recommendations. 

The difference between hemp and marijuana, which come from the same plant, is in the Delta-THC level. In order to be classified as hemp under federal law, the plant cannot have more than 0.3% delta-9 THC, marijuana’s psychoactive ingredient.

The underlying presumption is that some in the hemp industry have found a work-around in Delta-8 THC, which is made by concentrating hemp-derived cannabidiol (CBD) from the hemp plant. It’s not quite as intoxicating as delta-9 THC, with estimates pegging it at anywhere between 50% to 75% of the potency.

Under Senate Bill 271 any hemp product with more than 1.75 mg of Delta-8 THC per serving would be regulated, meaning it will require a legal ID to purchase and would be sold at a dispensary rather than online or at a convenience store.

But the folks at Charlotte’s Web got nervous.

The company was started in 2013 by Jared and Joel Stanley, along with other family members, on a farm near Boulder. Initially, they were working on medical cannabis, which was used by people with cancer and who held state medical marijuana licenses.

It didn’t start as a company, but, rather, as a mission, Jared Stanley told Colorado Politics recently.  

Two things changed the landscape for the use of CBD: the 2014 farm bill, and a CNN documentary in 2013 with Dr. Sanjay Gupta, who had been a very vocal opponent of medical marijuana. 

Gupta changed his views after meeting Charlotte Figi and her mom, Paige. Charlotte was having 300 seizures a week, but after using a CBD tincture her seizures dropped to less than one a week. 

The farm bill allowed the Stanleys to take the same plant that was less than 0.3% delta-9 THC and grow enough of it to make the CBD tincture available to 15,000 kids on a waiting list with the Realm of Caring Foundation. 

Since then, Realm of Caring data says CBD has been used by people with epilepsy, autism, anxiety, PTSD, depression, pain, cancer, fibromyalgia and with sleep problems.

But SB 271 could have put Charlotte’s Web out of business, Stanley said. Part of that, he indicated, is because of fights between the cannabis and hemp industries.

Charlotte’s story changed cannabis laws in 22 states that had no laws on CBD only, or medical cannabis laws, and some laws that would become recreational laws, Stanley said.

“Today, it’s crazy to think that here we are 10 years later, where we were cheered on and we were cannabis’ biggest supporter, and now they’re the lobby that is trying to take these products back into their market and restrict consumer access to these products,” he said

According to Stanley, the problem stems from lack of Food and Drug Administration oversight, which is forcing regulation on a state-by-state basis to protect both consumers and the CBD market.  

The 2023 draft bill would define intoxicating hemp products as having more than 2.5 milligrams of THC per serving, and with a ratio of CBD to THC less than 15:1.

Stanley said that ensured safe, highly therapeutic, non-intoxicating, full spectrum CBD products would remain accessible to consumers, while regulating out intoxicating cannabinoids. It also defined non-intoxicating cannabinoids versus intoxicating cannabinoids.

But an amendment to SB 271 came along shortly before the bill’s first hearing that would limit hemp products to no more than five servings per container. No full spectrum CBD company could comply with that restriction, Stanley said.

The compromise was a carefully-crafted one from the sponsors, Sens. Dylan Roberts, D-Vail and Kevin Van Winkle, R-Highlands Ranch.

For products with a ratio of CBD to THC greater to or equal to 20:1, there would be no limit on the number of servings per package, at least for now. That also would apply to tinctures such as Charlotte’s Web’s main product. Both would be subject to rulemaking that will take place later in the year.

The compromise came following the hearing in the Senate Finance Committee, which drew more than a dozen witnesses from the Charlotte’s Web community, including families with kids with disabilities.

“What we saw was a beautiful demonstration of democracy,” Stanley said. The sponsors listened to the voices of the constituents and amended the package limit serving restrictions on products like his, he said.

Still, outstanding issues remain for some stakeholders, Truman Bradley of the Marijuana Industry Group told Colorado Politics. 

He said the legislation is critical to protect public health, to ban synthetics and to make sure the products that are intoxicating – or have the potential to be intoxicating – are tested and labeled. He also favors language allowing the regulatory bodies to have the authority to make any changes they see fit. 

His organization has advocated for “tight” package limits, noting that serving limits are not helpful without package limits.

Full spectrum hemp products do have THC in them, but the question becomes how much is too much? That’s difficult to answer, Bradley said, because of something known as the “entourage” effect, the belief that CBD works better when it has a little THC in it. Hemp naturally has a little THC, he said. 

The issue then becomes a matter of how easy it is for someone who is underage to get it, and potentially to abuse it. If either are easy, that’s a problem, he explained.

Take a package of CBD gummies, for example. His partner’s kids are four and seven, and if they saw a package of gummies, they might eat the whole thing because they taste good.

The Marijuana Industry Group supported the amendment to exempt tinctures – such as Charlotte’s Web – because tinctures don’t taste good, he said.

But containers that have a lot of THC in them should have a maximum limit, Bradley added. If something has a lot of THC in it, and there’s no age limit or thought to restricting access to youth, and there’s not a package limit on the total amount of THC, that’s concerning and they will be “loud” about that.

At the end of the day, however, they support the bill and efforts for regulators to do what they need to do, he said.

“We don’t want to let the perfect be the enemy of the good because this needs to pass,” he said. 

For his part, Stanley acknowledged there are some in the hemp industry who want THC limits higher than 1.75 mg. He said there are products with those higher limits that are considered safe and non-intoxicating.

He stands with the industry on this.

“We don’t want to recommend a bill that is specifically only good for Charlotte’s Web,” he said.

The biggest remaining issue with the bill is on the rulemaking. Stanley would prefer that THC limits not be subject to rulemaking and instead defined in statute. 

As of Friday, the bill is awaiting another series of amendments as it heads to the House floor.