On August 1, Missouri Governor Michael Parson issued Executive Order 24-10 (the EO), a bold move aimed at addressing consumer safety concerns surrounding unregulated psychoactive cannabis products. The EO sparked a legal battle with the Missouri Hemp Trade Association (MO Hemp), which claims that by designating these products as adulterated and imposing an embargo under the EO, the Missouri Department of Health and Senior Services (DHSS) violated Missouri law. The governor’s action is yet another example of a state taking aggressive steps to address gaps left by the lack of federal regulations to ensure consumer safety in the burgeoning industrial hemp industry.

Key Provisions of the EO

The EO requires DHSS to classify foods containing unregulated psychoactive cannabis products as coming from an unapproved food source or containing an unapproved food additive. These products include delta-8 tetrahydrocannabinol (THC), delta-10 THC, hexahydrocannabinol (HHC), tetrahydrocannabinol (THC-O), tetrahydrocannabiphoral (THCP), tetrahydrocannabivarin (THCV), and similar compounds commonly found in psychoactive cannabis products derived from industrial hemp, pursuant to the Agriculture Improvement Act of 2018, known as the 2018 Farm Bill.

Starting September 1, the EO directed DHSS to:

• Designate these foods as deleterious, poisonous, and adulterated; and
• Embargo and condemn any food containing these products.

The EO exempts products regulated by the Division of Cannabis Regulation (a division of DHSS), provided they are sourced from licensed establishments.

DHSS Memo to Retailers and Wholesalers

On August 29, DHSS issued a memo to inform food retailers and wholesalers about its actions under the EO. The memo’s key points note:

• Only facilities regulated and licensed by DHSS’s Division of Cannabis Regulation can manufacture and sell products containing psychoactive cannabis.
• DHSS’s Bureau of Environmental Health Services will regulate all facilities providing food to the public.
• Inspections will prioritize complaints based on health (i.e., referrals from poison control, clinicians, local public health agencies, etc.), safety (i.e., referrals from law enforcement), marketing to children, and frequency of complaints received.
• If unregulated psychoactive cannabis products are found during an investigation, DHSS will document findings, request voluntary compliance, and potentially embargo products until a court order for destruction is obtained.

Legal Challenge by MO Hemp

In response to the EO, MO Hemp filed a petition for declaratory judgment and injunctive relief against the DHSS on August 30. MO Hemp alleges that:

• Missouri law prohibits DHSS from designating foods containing industrial hemp products as adulterated because it has no constitutional or statutory authority to declare that such products are adulterated. MO Hemp specifically points to statutory provisions that exclude industrial hemp commodities and products from the definition of “adulterated” on the basis that any such products contain industrial hemp.
• Missouri law prohibits DHSS from imposing an embargo on unadulterated foods.
• DHSS did not promulgate a rule and it may only initiate such action through the rulemaking process required by the Missouri Administrative Procedure Act.

MO Hemp seeks:

• A declaration that DHSS cannot deem foods containing industrial hemp to be adulterated, cannot embargo food containing industrial hemp products, and cannot unilaterally stop the manufacture, sale, or delivery of foods containing industrial hemp products; and
• An injunction to preventing DHSS from deeming food to be adulterated because it contains industrial hemp and embargoing those foods.

The ball is now in DHSS’s court to respond to MO Hemp’s petition.

Conclusion

The EO marks a significant step in attempting to regulate psychoactive cannabis products in Missouri. The legal challenge by MO Hemp underscores the complexities surrounding the regulation of industrial hemp products and the need for government agencies to follow proper procedures. As the legal landscape continues to evolve, it is crucial for consumers, producers, and regulators to stay informed and engaged in the ongoing efforts to balance the benefits of hemp with the need for public safety and consumer protection.