The Three-Two-ification of Cannabis: Does the Industry Need Potency Caps?

Back in 2012, when Colorado became the first state to legalize recreational/adult-use marijuana, we typically summarized the proposal with a pithy suggestion– “just regulate marijuana like alcohol.” It didn’t quite shake out that way, because marijuana is decidedly not alcohol, but the argument by analogy certainly convinced voters to approve cannabis reforms in a number of states. Likening marijuana to alcohol has its upsides when advocates use it to educate an alcohol-friendly populace, but in the hands of prohibitionists, this analogy becomes a double-edged sword. They see a plethora of concentrates on dispensary shelves and conclude it’s the same thing as drinking straight Everclear. From that perspective, it’s at least understandable why in recent months there has been a spate of bills aiming to impose potency caps on marijuana.


Furthering this thread on alcohol parallels, toward the end of the United States’ ill-fated experiment with alcohol-prohibition, Congress imposed an arbitrary concentration threshold, below which beer was considered to be “non-intoxicating,” and therefore legal for sale and distribution. The threshold they settled on was 3.2% alcohol by weight. So, even under Prohibition, you could make and sell beer as long as it had less than 3.2% alcohol. Likewise, it is now federally legal to sell and consume cannabis, as long as that cannabis contains less than 0.3% THC. You may know this as “hemp,” but hemp is just a cannabis plant with low THC


Nine months after the 3.2-compromise, and alcohol prohibition was repealed at the federal level, many states chose to codify the 3.2% cap into state law. Some states simply continued prohibition, while others opened up their markets to all kinds of beer, wine, and liquor. The parallels continue from there, but this post isn’t about the history of liquor laws– it’s about lawmakers who want to impose arbitrary potency caps on intoxicants. And if you live in one of the following states, you may be about to experience firsthand what it was like to live in a “three-two” state.


Lawmakers Try to Dab on Our Concentrates

Here are some examples of what we’re seeing happen both at the federal level, and in states across the country.  Keep in mind, your typical purchase of flower at a legal dispensary contains just under 20% THC:

    • Vermont successfully implemented caps of 30% THC for flower and 60% for concentrates as part of its legalization statute
    • Florida seems to make the news most frequently; lawmakers there have tried multiple times to cap THC at 10%. Before that, they banned smokable products entirely under Florida’s medical program, but the ban was repealed in 2019.
    • Even Colorado has flirted with potency caps, the most recent being 15%


Considering the most popular strains of flower sit around 20% THC, and concentrates range from 39% to over 80% depending on the extraction method, these potency caps, with the exception of Vermont’s, would result in a severe constriction on flower purchases and, effectively, a blanket ban on concentrates. These proposed potency caps, like the historical 3.2% cap on beer, amount to a return to prohibition. 


Do We Need Potency Caps?


We certainly don’t have them on alcohol. You can walk down the street to your local liquor store and buy five gallons of Everclear (95% alcohol) right now. But maybe we have to ask if high potency cannabis is a bigger problem than high potency alcohol? Recent data shows that sales of cannabis extracts and concentrates (which are generally higher potency) make up 47.7% of marijuana sales, while distilled spirits only account for 34.2% of alcohol consumption in the United States. However, this is definitely an imperfect comparison, since individual use after purchase cannot be measured (were the products bought for personal consumption or for sharing at a group gathering?). Additionally, some wine and beer may fall into the “high potency” range depending on where you draw your line. Likewise, some concentrates and edibles may contain less than what we generally consider high potency cannabis; for example, the budding cannabis beverages market is largely focused on low-dose drinks. But let’s stop putting words in lawmakers’ mouths, and share a couple of the arguments we encountered when listening to the legislators who advocate for marijuana potency caps. 


Save The Children

One common thread connecting these various attempts at potency caps is that lawmakers who advocate for limiting potency appeal to the damage that marijuana can do to a developing brain. The science is still evolving, but there is evidence that the use of intoxicants early in life can have permanent, negative effects on cognitive function. We do not advocate for underage use of marijuana because the adolescent brain is still developing, and even though the science is not settled, your long-term mental health is not something to experiment with. However, legalization (with its attendant proliferation of concentrates) has not been shown to affect usage among adolescents. In some states, these rates have even declined following legalization. Regardless, it is already illegal to sell to minors in every state, so the effective potency cap for them is 0%.


Reefer Madness

Another common thread was that during debate on the bills, many lawmakers referenced a recent study linking cannabis use with psychosis. This is most likely where the 10% potency cap conversation originated. The study found that daily cannabis use is correlated with an increased likelihood of psychosis; a correlation which is five times as significant when they looked at daily users of cannabis with a potency of 10% or more THC. “Assuming causality… 12.2% of cases of first-episode psychosis could be prevented across the 11 sites” they studied, even claiming a potential 50% reduction in Amsterdam. 100,000 people in the US experience first-episode psychosis every year. Could we really prevent 12,000 of those episodes by restricting all cannabis products to 10% THC? Well…no. 


The most glaring issue with this claim can be found in the introduction of the study, “Assuming causality.” Any person who has taken a basic statistics or science course can tell you that correlation does not equal causation. Why would we assume cannabis causes psychosis when we could just as easily assume that mental illness causes people to rely on cannabis use? Certainly, the fact that schizophrenia (of which psychosis is a symptom) is 80% heritable from parents would serve to undercut the claim that marijuana use is the sole causal factor. Additionally, why would you assume 100% causality when more than one-third of those who experienced psychosis in the study had never consumed cannabis? One cannot simply assume causality when making policy, and this study should be taken with a massive grain of salt.


Stop Banning Things

But even if we take that study at face value, policymakers should know at this point that prohibiting something is not sufficient to stop people from using it. Rather, it only stops people from using it legally (see: the entire history of the War on Drugs, and alcohol prohibition for that matter). It compels people to make their own or find it from sketchy sources (demonstrating yet another parallel between cannabis and alcohol prohibition). Both of these results are generally worse for public health. Homemade and illicit market processes are less likely to produce safe, consistent products. Illegal hash operations make the news all the time when they explode due to the mishandling of butane and other inflammable solvents. The EVALI (E-cigarette or Vaping Product Use-Related Lung Injury) crisis which started in 2019 was almost entirely attributable to illicit market vaping products which were cut with vitamin E acetate.


And as we said earlier, cannabis is definitely not alcohol. You cannot die from overdosing on THC; you won’t die from withdrawal; and there are no established adverse physical health effects from THC (although the research on that is still in early phases and smoking is probably still bad for you). 


Harm Reduction Through Education (not Punishment)


If it is true that THC is inducing psychoses in certain individuals — and the literature, in general, does seem to point to frequent use being an increased risk factor in persons who are predisposed to it, although it is unlikely to be the sole causal factor manifesting psychoses in otherwise healthy individuals — then the industry should handle it through education. Punishing people for selling and buying marijuana was what got the United States into this mess in the first place, and banning these products outright does not make sense when the majority of the population will likely never see this effect, even with daily, high-potency use. 


Why not a warning label? It certainly works for cigarettes. Right next to the “don’t smoke while pregnant” and “don’t drive or operate heavy machinery” statements, why not include “WARNING: Frequent consumption of THC may induce psychosis in persons with a family history of schizophrenia or those who are otherwise predisposed.”

If lawmakers continue to insist on regulating marijuana like alcohol, let’s at least ask them to be consistent and stay away from prohibition. We already tried that.

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