Arbitrary THC Limits Could Wipe Out Much of the Cannabis Industry

If states generally don't limit the potency of distilled spirits, why is such a safeguard necessary for a much less hazardous product?

Several years ago in Colorado, during a tour of marijuana dispensaries in the ski towns near Denver, my host offered me a pipe that contained a cannabis strain he called Buddaface or Buttaface—or maybe even Butter Face, which is an actual thing. He said it had a THC content somewhere between 20 and 30 percent.

For reasons that will soon be clear, I cannot vouch for the spelling or the exact strength. But the audio record of that ride revealed what happened after I took a puff or two: What had been an interview, or at least a conversation, lapsed into long silences punctuated by random remarks about the sights we were passing. I was not really working anymore, and I did not care.

The marijuana in that pipe was quite different from the black-market stuff I had smoked during college, when I could go through a whole bowl without experiencing the same effect. From my perspective, the Colorado cannabis was better, delivering a more pleasant experience in exchange for less effort and less exposure to combustion products. In that sense, it was also healthier.

Many politicians, by contrast, view stronger marijuana as ipso facto worse. Unimpressed by the minimization of respiratory hazards, they focus on contentious claims about the psychological impact of potent pot: It is more addictive, they say, or more likely to trigger psychotic reactions. They therefore want to legally restrict the potency of cannabis products sold by state-licensed retailers, which they claim will protect public health and safety.

To some extent, the recent concern about THC levels rehashes warnings we have heard repeatedly since the 1980s. Drug warriors faced the challenge of persuading baby boomers who had smoked pot in high school or college with no ill effects that similar experimentation by their own offspring was cause for serious alarm. Among other things, they claimed there was no comparison between modern marijuana and the pot of the 1960s and '70s because average potency had increased dramatically thanks to the ingenuity of black-market growers.

Many of those claims were exaggerated. Prohibitionists presented misleading comparisons between nonrepresentative samples and implied that everybody in the old days was essentially smoking ditchweed, which made you wonder what the appeal was. Furthermore, higher-potency cannabis preparations have been available for centuries in the form of hashish, which has a THC content as high as 60 percent.

Still, there is no denying that the average state-licensed pot shop today offers a much wider range of potencies than was ever commonly available on the black market. Medicine Man in Denver, for instance, sells flower with THC levels ranging from about 5 percent to 24 percent. It also offers concentrates such as wax and shatter, which can contain up to 90 percent THC.

Is this a problem? As long as consumers understand what they are getting, you might think, they can decide for themselves which products meet their tastes and preferences, and they can adjust their consumption accordingly: Just as drinkers tend to consume smaller volumes when they drink liquor than they do when they drink beer, cannabis consumers tend to stop when they achieve the effect they want, which means they take fewer puffs of stronger pot. But politicians who favor THC limits do not trust consumers to make those decisions.

So far, according to a recent roundup in Marijuana Business Daily, Vermont is the only state with a legal cap on THC content. Recreational stores have not opened there yet, but when they do they will not be allowed to sell flower that exceeds 30 percent THC or concentrates that exceed 60 percent.

A proposed limit in Florida, where marijuana is legal only for medical use, is far more onerous. It also would cap the THC content of concentrates at 60 percent, but it would limit flower to 10 percent. A bill to that effect was approved by a state House committee on a party-line vote last month; a similar Senate bill has not advanced yet.

"This is an existential threat, not just to the industry but to the whole idea of medical marijuana in Florida," Ben Pollara, executive director of Florida for Care, a nonprofit that supports medical marijuana, told Marijuana Business Daily. This month Gov. Ron DeSantis said he has "not endorsed" the caps. But at the same time, he expressed concern about rising potency. "If you look at some of the stuff that's now coming down, there's a lot of really bad things in it," he said. "It's not necessarily what you would've had 30 years ago, when someone's in college and they're doing something."

In Massachusetts, HD 2841 would likewise limit THC in flower to 10 percent, while SD 465 would charge the Cannabis Control Commission with setting "reasonable potency limits for each type of marijuana product." A Washington bill that looks dead for now would have banned THC concentrates containing more than 30 percent THC. A Montana bill described as "probably dead" would establish a 15 percent cap for all cannabis products.

In Colorado, state Rep. Yadira Caraveo (D–Adams County) this year wrote a bill that would have imposed the same 15-percent rule but shelved it in response to the uproar it provoked. Caraveo, a pediatrician, said she wanted to stop children, who are not legally allowed to buy marijuana, from "getting their hands on products they should really not be getting their hands on." A spokesman for the dispensary chain Terrapin Care Station estimated that Caraveo's bill would have banned 65 percent of the marijuana products currently available in Colorado.

Legislators who support such limits think potent pot appeals to many consumers, which is why they want to ban it. But if they are right, their proposals will invite a resurgence of the black market that legalization aims to displace. "Consumer demand for these products is not going to go away," observes Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, "and re-criminalizing them will only push this consumer base to seek out similar products in the unregulated illicit market."

Since 1985, Armentano notes, the Food and Drug Administration (FDA) has allowed medical use of dronabinol (a.k.a. Marinol), "a pill containing 100 percent THC." In 1999, the FDA moved dronabinol from Schedule II of the Controlled Substances Act to Schedule III "because of its remarkable safety profile." While alcohol is commonly sold in lethal quantities, Armentano says, cannabis, "regardless of potency or quantity, cannot cause death by lethal overdose."

The alcohol comparison is instructive since paternalists have long worried that drinkers, if left to their own devices, will be inclined to choose the beverages that give them the most bang for their buck. Hence all the concern about "strength wars" among brewers, which led to a federal rule that banned statements of alcoholic strength from beer labels (unless required by state law) until the Supreme Court overturned it on First Amendment grounds in 1995.

The idea that drinkers always favor the most potent products they can afford is demonstrably wrong. By volume, malt beverages account for four-fifths of the U.S. alcohol market; wine and distilled spirits split the rest, with the latter almost always in third place. The popularity of products like hard seltzer and light beer shows that drinkers do not necessarily prioritize potency even within the same category. The wide range of marijuana products likewise shows that cannabis consumers are not all bent on getting as stoned as possible as quickly as possible.

Some states set potency limits for beer, but only a few have comparable rules for distilled spirits, and the distinctions they draw can be puzzling. California, for example, caps the potency of "grain alcohol" at 120 proof (60 percent), which covers the stronger versions of Everclear, but sets no limit for other kinds of liquor (allowing 151-proof rum, for example). Nevada, by contrast, has a consistent 160-proof (80 percent) limit.

If states generally do not see the need to cap the potency of distilled spirits, it is hard to figure why cannabis, a far less hazardous product, requires such a safeguard. But the legal treatment of marijuana has long been anomalous, and evidently some of that irrationality lingers in the minds of politicians even when they are happy to legalize the industry and reap the resulting tax revenue.