Legislative actions by the Congress and the Tennessee General Assembly in the last five years have dramatically increased the availability of some forms of legal cannabis to Tennesseans. These actions reflect a significant change in public policy which will likely impact Tennesseans in disparate ways. Cannabis industry supporters are calling for even freer access.
Advocates for the decriminalization or increased legalization of cannabis typically point to individual freedom of choice within a free market system as justification. Just folks choosing to be “high”. They also laud the “sin tax” revenue expected to arrive in government coffers, to fix the roads and such, while minimizing the consequential costs.
A smaller but influential group of persons are supporters of cannabis legalization for limited medicinal purposes. There is evidence to support the efficacy of cannabis in the treatment of nausea and seizures.
Highway Safety advocates are concerned about the prospect of more impaired drivers on Tennessee roadways. Data clearly evidences that as cannabis availability and usage rise so does the number of persons arrested for driving while impaired by cannabis and cannabis mixed with alcohol and other drugs.
There is also growing discussion among medical researchers and public health officials regarding the adverse risks of cannabis usage on the health of individual users. In Tennessee, there is currently little to no independent verifiable testing of the cannabis products offered for sale to the public.
This article is not intended to be an exhaustive study of these complicated topics. Rather, the intent is to summarize the current legal status of cannabis in Tennessee and to warn of the serious health risks as legal restrictions fall.
In 1964, Bob Dylan sang that, “the times, they are a changing”. That remains true today. As attitudes regarding the use of cannabis have evolved in the almost 60 years since then, the result is a confusing patchwork of laws and regulations governing cannabis across the nation. Not even all experts agree on how to chart the legality or illegality of various cannabis products within the several states. Approximately 39 states and the District of Columbia have legalized medical cannabis while 35 states have legalized cannabis for recreational use. The cannabis industry often advocates for legal medicinal cannabis as a gateway to full decriminalization. Tennessee has not yet legalized medicinal cannabis.
However, Tennessee has legalized the possession and use of substances containing tetrahydrocannabinol, generally known as THC, in certain quantities. THC is one of many cannabinoids found in cannabis. It is responsible for producing intoxicating and impairing psychoactive effects.
The cannabis plant may be classified as cannabis sativa, cannabis indica or a hybrid. Marijuana comes from both plants. Hemp comes from only the cannabis sativa family.
Cannabis has historically been grown throughout the world for use as a psychoactive drug in the form of marijuana and as a fiber in the form of hemp. In the hemp form it is fast growing and is a desirable method to produce rope, cloth, paper and building materials. The two types look similar when processed and produce the same aroma. Even well-trained canines cannot differentiate the odor of the two. They differ in the quantity of the psychoactive ingredient, THC, found in each.
The federal Marihuana Tax Act of 1937 essentially banned both marijuana a/k/a marihuana and hemp in this country. However, the 2018 Farm Bill a/k/a the Agriculture Improvement Act adopted by Congress and signed into law by then President Trump legalized, at the federal level, the cultivation and use of cannabis sativa plant derivatives of hemp. The law defined hemp as cannabis which contains up to .3% THC by dry weight. The Tennessee General Assembly followed suit and adopted this as the standard for legal cannabis products in the state. Therefore, cannabis containing .3% or less of THC is legal hemp. Cannabis containing more than .3% THC is illegal marijuana. The .3% threshold is arbitrary. It was apparently suggested by the researcher and author, Ernest Small, in 1979. Small was unable to identify a difference between the two types other than one contained more THC than the other. In this regard, the difference between marijuana and hemp is both legal and botanical.
In recent sessions of the Tennessee General Assembly, there have been bills filed which seek to decriminalize marijuana and tax its sale at a 15% rate in addition to the normal sales tax. However, based on the published comments of certain influential legislators, full legalization seems unlikely in Tennessee so long as marijuana is listed as a schedule I controlled substance under federal law. Schedule I controlled substances are considered by federal law to be of no medicinal value and have a high potential for abuse. Other schedule I controlled substances under federal law are LSD and heroin. Under Tennessee law, which uses a different standard, marijuana is a schedule VI controlled substance. Federal authorities have undertaken a review of this classification. The United States Department of Health and Human Services recommended the federal reclassification of marijuana to schedule III in August of 2023. Federal prosecutions for the possession of small amounts of marijuana are rare. Simply reclassifying marijuana to schedule III is not decriminalization. Conceivably, a person who is following a state law regimen where cannabis is legal would still be at risk of federal indictment.
In 2021, the General Assembly passed legislation creating the Tennessee Medical Cannabis Commission. The Commission was given the mandate to recommend proposed legislation to create a medical cannabis program for Tennessee. The Commission has met and made proposals which have not yet been acted upon by Tennessee lawmakers.
More discussion of botany, certainly so than most lawyers wish, is necessary here.
THC is further classified during microanalysis by the position of a double bond on the chain of carbon atoms which comprise it. The exact location of that double bond identifies the variety as delta 8, delta 9 or delta 10 THC. Delta 8 THC has this double bond on the eighth carbon atom. Delta 9 THC has it on the ninth carbon atom. Delta 10 THC has a double bond present on the tenth carbon atom of the chain.
The impairing “high” resulting from the use of cannabis is greatest for delta 9. We refer to delta 9 THC as marijuana. While delta 8 and delta 10 THC are less psychoactive than delta 9 THC, both interact with the central nervous system to produce psychoactive effects.
Presumably, most products being marketed in the so called “cannabis stores”, “head shops” and in convenience stores across Tennessee are derived from delta 8 or 10 THC. The advertising and packaging of these supposedly hemp-based products strongly suggests that they deliver intoxicating results.
As the result of action by the Tennessee General Assembly in 2023, the sale of delta 8 based products to persons under 21 years of age is illegal. Furthermore, cannabis edibles offered for sale which contain delta 8 THC cannot legally be shaped like animals or cartoon characters. For real. Formerly, the products were legal to sell in Tennessee to persons of any age and bearing the semblance of any animal or cartoon character, it seems.
Also available in Tennessee convenience stores are products which contain a cannabinoid known as cannabidiol, or CBD. CBD may be marketed as a food, oil, lotion or capsule. CBD is a compound found in cannabis which may contain up to .3% THC but does not cause psychoactivity and is generally considered to be nonaddictive. However, the prescription of laboratory purified CBD has been approved by the United States Food and Drug Administration to treat rare seizure disorders. So, presumably, it can produce a powerful effect on the body. CBD may be sourced from both hemp and marijuana but is only legal in Tennessee in its hemp form.
While cannabis science may be confusing, it is obvious that if one consumes more of a product containing .3% THC, like gummies or other edibles of any shape, one is consuming more THC. This is important for the same reason that consuming two shots of 100 proof whiskey is more intoxicating and impairing than consuming one shot of 100 proof whiskey.
Intrepid users are aware that tetrahydrocannabinolic acid, commonly referred to as THCa flower, a chemical precursor to THC, which can be legally purchased in Tennessee, is, with simple administration of heat, turned into THC which can produce a “high”. While beyond the scope of this article, one wonders how prosecutors are responding to this quandary.
Next, a discussion of the risks to human health from cannabis usage.
The health risks to the consumers of cannabis are varied. Some risks are well known while others are only becoming more widely appreciated as increased usage has led to greater study.
According to the Substance Abuse and Mental Health Services Administration (SAMHSA), one in ten people who begin to use marijuana will become addicted to the THC it contains with that number rising to one in six people who begin using marijuana before age 18. And with this use comes risks which include a permanent IQ loss, increased rates of depression, reduced physical performance, abnormalities in babies born to chronic users and an increase in interpersonal relationship problems.
The use of cannabis products has reached an all-time peak with more than 61 million Americans now estimated to participate. Usage among all age groups and both sexes is going up. So is the number of visits to hospital emergency departments due to cannabis poisoning. Even the frequency of vet visits due to the unintentional cannabis poisoning of the family pet tracks upward with the increased availability of cannabis.
The diagnosis of cannabis use disorder is on the uptick. This is the term that describes a patient who is unable to curtail the use of cannabis despite the presence of adverse health consequences affecting the person. Drugs designed to lessen the craving for cannabis have not proven widely successful. Behavioral therapy is the most common treatment. Sometimes the two treatments may be employed together.
A factor contributing to the increase in health risks is that the amount of THC found in today’s marijuana products is much greater than was typically found in prior decades. In the 1970’s, it is estimated that most marijuana contained about 3% THC. Several strains of marijuana, which are marketed in states with legal recreational marijuana, now contain up to 30% THC.
THC usage impairs a person’s ability to perform the complex activities required for driving. In Tennessee, it is illegal for one to drive when the presence of THC deprives that person of the clearness of mind and control of oneself that he or she would otherwise possess when sober. The resulting impairment of the ability to safely operate a motor vehicle to any extent prohibits lawful driving.
People who operate a vehicle while under the influence of cannabis and others who encounter them, will experience danger because of the operators reduced reaction time and decreased coordination. Decades of published data correlate impairment from cannabis use with an increased number of motor vehicle crashes and fatalities. Furthermore, research has shown that the use of both cannabis and alcohol at the same time is likely to result in more serious and fatal crashes than the use of alcohol alone. Since recreational cannabis became legal in Colorado, traffic deaths where drivers tested positive for cannabis increased 138%. Studies show that driver impairment from cannabis or polysubstance use is now nearly as prevalent as alcohol related impairment alone. About 5% of the general United States population was reported to have used cannabis and alcohol at the same time in 2022.
A recent study, produced by Columbia University’s Mailman School of Public Health, revealed that 42% of drivers who reported using alcohol and cannabis in a national survey also said that they drove while under the influence. This is one of the first nationally representative studies of the association between alcohol and cannabis use by those drivers 16 years of age and older. Of the 34,000 drivers surveyed, 20% said that they used cannabis daily and 28% reported simultaneous use of the two substances. The researchers found that those drivers who used both cannabis and alcohol were about three and a half times more likely to drive under the influence. According to this report, the simultaneous use of cannabis and alcohol increased the risk of causing a motor vehicle crash by 5 times and increased the risk of being involved in a fatal crash by 25 times. Even relatively low levels of either cannabis or alcohol, when mixed with the other increases the effect of the other intoxicant. The authors of the study, published in the American Journal of Preventive Medicine, called the results on public health, “striking”. Study participants were mostly male, white, poor, and living in a state with legal medical cannabis.
While there is little research yet on the relationship between higher potency THC and the chronic health risks of cannabis use, it is probable that increases in THC levels do result in increased dependency.
Recent studies by the American Heart Association (AHA) point to the conclusion that the use of cannabis products, whether recreational or medicinal, may result in the development of cardiovascular disease which impacts the heart, lungs and blood vessels. The effects of inhaling cannabis are like those of inhaling tobacco: chest pain and heart attacks are much more likely to occur.
The Center For Disease Control (CDC) warns that the use of CBD is not risk free. The CDC says that CBD may cause liver damage, interfere with prescribed medication, cause sleepiness, mood changes and adversely affect unborn children. Nursing mothers should also avoid CBD because the compound is passed from mother to child while nursing. The over-the-counter proliferation of CBD products comes without any research on the effects of long-term usage. We do not know what the long-term health impact will be. CBD sold over-the-counter is not regulated by the Food and Drug Administration (FDA).
These health risks are enhanced with age. Cannabis use in adults over age 65 is reported to have doubled in the past few years. Persons in this age group often have chronic health conditions which may make the use of cannabis riskier. Hypertension, diabetes and high cholesterol, which are diseases commonly found in older adults, may be aggravated by cannabis usage.
One AHA study found that among daily users of marijuana there was a 34% increase in the risk of heart failure. A Danish study from 2022 found that the use of medicinal marijuana was linked with a 64% increase in abnormal heart rhythms. Dr. Peter Grinspoon, a Harvard Medical School physician and lead researcher has suggested that this may be because THC activates the fight or flight response in the human body which increases blood pressure and strain on the heart.
More research is needed on the effect of THC ingested by edibles like gummies. Most of the data comes from smoking/vaping related studies. It is probable that edibles present fewer health risks because the user is not inhaling the toxic chemicals found in smoke. But less risky does not mean safe.
An academic article published in the journal, Frontiers In Microbiology, on October 19, 2023, entitled “Fungal And Mycotoxin Contaminants In Cannabis And Hemp Flowers: Implications For Consumer Health”, concludes that cannabis use, including medicinal cannabis, may cause illness in people because of the presence of unsafe fungi which contaminate the plant. The peer reviewed article was researched and written by Professor Kimberly Gwinn of the University of Tennessee, Assistant Professor Maxwell Leung and graduate student Ariell Stephens of Arizonia State University and Professor Zamir Punja of Simon Fraser University in British Columbia, Canada.
The authors studied the data and regulations regarding the production of cannabis including hemp on a world-wide scale. The article summarizes available information regarding mycotoxins produced by pathogens in hemp and cannabis products. Professor Gwinn noted that the increased availability of ingestible cannabis suggests a need for more study of the health risks resulting from the presence of contaminants, as is true with other agricultural products. According to the article, the “human health risk assessment method(s) used to regulate food and pharmaceuticals have yet to become standard for the emerging cannabis industries.”
The authors say that research suggests that some common fungi found in cannabis may cause skin and lung infections in humans. Patients being treated for cancer and using cannabis to help with nausea, organ transplant patients and cannabis users with diabetes and HIV are likely to be at the most risk. They recommend that users or cannabis industry workers who are immunocompromised exercise the greatest caution.
The CDC has warned that CBD products may contain pesticides, heavy metals, bacteria and fungi.
The CDC has also issued a health advisory to inform consumers that CBD can be synthetically converted into Delta 8 THC which is psychoactive.
The inconsistency, even dearth, of verifiable testing for agricultural contaminants of cannabis products in the marketplace has resulted in a lack of data on the prevalence of known and unknown impurities and their health impacts.
Moreover, in Tennessee there is currently no required, authorized statewide system in place to test or monitor the cannabis products being sold for the detection of the amount of THC present nor for the presence of impurities. There are only anecdotal reports of sporadic testing being done as the result of the actions of some appropriately curious police departments. This lack of testing is itself a serious risk to public health. However, Public Chapter 423 of the Acts of 2023 adopted a legal framework for the Department of Agriculture to adopt consumer safety testing rules regarding the production and sale of cannabis products. A set of proposed rules were published in mid-December 2023 and public hearings were held in early-February 2024. Recent cases involving substances other than THC demonstrate the commercial production of products which are deceitfully labeled as seemingly safe, albeit pricey, dietary supplements and the like, when, in fact, they are designed to mimic the effects of highly regulated and addictive drugs with severe health consequences.
Determining the legality of a particular cannabis-based product in Tennessee today may require both a law license and a well-staffed modern laboratory. Even then, “legal” does not mean safe or wise.
Caveat emptor, indeed.
Tennessee Judicial Outreach Liaison
Judge Donald E. Parish
Phone: 731-225-6386
Email: donaldparish1@yahoo.com
This project is funded through a grant provided by the Tennessee Highway Safety Office.
