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1 Good morning, Senator Carla J. Joseph, Chair of the 36th Legislature's Committee on Rules and 1 Judiciary, other members of this Committee, other members of the 36th Legislature present, 2 fellow testifiers, and the listening and viewing audience. I am Joanne Moorehead, Executive 3 Director of the Virgin Islands Office of Cannabis Regulation (OCR). Thank you for the 4 opportunity to provide testimony before this body with respect to Bill No. 36-0105. This 5 legislation seeks to prohibit the manufacture, possession, and sale of hemp-derived intoxicating 6 cannabinoids such as tetrahydrocannabinolic acid (THCa), delta-6 THC, delta-8 THC, and delta- 7 10 THC within the Virgin Islands. 8 9 The Office of Cannabis Regulation appreciates the Legislature’s recognition of this emerging 10 challenge and supports the intent behind Bill 36-0105. The proliferation of intoxicating hemp 11 derivatives has created significant public health and consumer safety concerns across the United 12 States, not just the US Virgin Islands. Left unaddressed, these substances can undermine the 13 carefully constructed framework established by the Virgin Islands Cannabis Use Act (Act 8680) 14 and the Office’s implementing rules and regulations. By seeking to prohibit unregulated 15 intoxicating hemp products, this bill aims to close a loophole that has placed consumers— 16 particularly young people—at risk, while also protecting the integrity of the regulated cannabis 17 program. 18 19 The legal context of the Virgin Islands is important to underscore. When the Cannabis Use Act 20 was enacted, its primary focus was the regulation of cannabis cultivation, processing, and retail 21 distribution within a licensed and monitored framework. The Act envisioned a marketplace that 22 is transparent, safe, and accountable, subject to testing, labeling, and oversight by the Office of 23 2 Cannabis Regulation. The subsequent adoption of OCR’s approved rules and regulations in May 24 of 2024 further advanced these protections, establishing standards for quality control and 25 consumer safety. 26 27 Yet neither the Act nor the regulations anticipated the rapid emergence of intoxicating hemp 28 derivatives created through chemical conversion or synthesis. This gap is not unique to the 29 Virgin Islands. The 2018 U.S. Farm Bill, which federally legalized hemp containing no more 30 than 0.3 percent delta-9 THC, similarly did not contemplate the proliferation of intoxicating 31 cannabinoids such as delta-8 THC, delta-10 THC, or THCa products marketed as hemp. 32 Likewise, the Virgin Islands Hemp Bill was designed to promote agricultural and economic 33 opportunities but was not drafted with an eye toward these chemically altered cannabinoids that 34 exploit definitional loopholes. 35 36 It is also important to note that the calculation of total THC concentration under the federal Farm 37 Bill is based on the sum of delta-9 THC and the potential conversion of THCa to delta-9 THC 38 through decarboxylation, expressed as total THC = (delta-9 THC) + (THCa × 0.877). However, 39 this formula is not applied uniformly across the United States. Some states have adopted the total 40 THC standard as required by the U.S. Department of Agriculture’s final rule for hemp testing, 41 while others continue to rely solely on delta-9 THC concentration. This inconsistency has created 42 additional regulatory uncertainty and variation in enforcement from one jurisdiction to another. 43 In some states, hemp products with high THCa content but low delta-9 THC are considered 44 compliant, while in others they are treated as marijuana. This lack of uniformity complicates 45 enforcement and consumer understanding and underscores the importance of clearly defining 46 3 testing and compliance standards within the Virgin Islands’ legislation. 47 48 As a result, products containing delta-8 THC, delta-10 THC, and similar compounds are now 49 widely available in mainland markets and have begun to appear in the Virgin Islands and other 50 Caribbean jurisdictions, often sold in forms such as candies, gummies, and vapes that oftentimes 51 are packaged in a way that particularly appeal to youth. 52 These products pose several risks. First, they are largely manufactured outside of regulated 53 systems, meaning that quality control, accurate labeling, and laboratory testing are inconsistent 54 or absent. Studies in other states have shown that many delta-8 products contain contaminants, 55 residual solvents, or higher-than-advertised levels of THC. Second, because they are often 56 marketed under the guise of “hemp” or “CBD,” consumers may mistakenly assume they are 57 benign, while in reality they are intoxicating. Third, their unregulated sale undercuts the 58 legitimate, licensed cannabis industry, creating an uneven playing field and reducing potential 59 revenue to the territory. Finally, and perhaps most importantly, they have proven accessible to 60 minors in ways that would be strictly prohibited under OCR’s rules for cannabis dispensaries. 61 62 It is also necessary to address specifically the bill’s reference to tetrahydrocannabinolic acid 63 (THCa). THCa is not a synthetic or artificially converted cannabinoid. Rather, it is the naturally 64 occurring acidic precursor to delta-9 THC found in raw cannabis plants. In its natural state, 65 THCa is non-intoxicating because it does not readily bind to cannabinoid receptors in the brain. 66 Only when exposed to heat—through smoking, vaping, or baking into edibles—does THCa 67 undergo decarboxylation, the chemical reaction that removes a carboxyl group and converts it 68 into delta-9 THC, the compound responsible for intoxication. 69 4 70 This distinction is particularly important given the emergence of “THCa flower” now being sold 71 in hemp retail outlets both in the mainland United States and, increasingly, within the Virgin 72 Islands. These products are marketed and labeled as legal hemp because their measured delta-9 73 THC concentration remains below the 0.3 percent threshold prior to combustion. However, this 74 classification is misleading. When such products are consumed through smoking, vaping, or 75 other methods of heating, the THCa contained in the flower decarboxylates into delta-9 THC, 76 producing the same psychoactive and intoxicating effects as cannabis flower sold under the 77 regulated market. In practical terms, the consumer is not ingesting THCa in its inert, non- 78 psychoactive form, but rather consuming THC that results directly from the heating process. 79 80 Because THCa flower can be sold under the guise of hemp while delivering the same 81 pharmacological effect as regulated cannabis, it has become a primary vehicle for circumventing 82 cannabis regulations across the United States. Compounding this issue is a broader analytical 83 loophole in current hemp testing protocols, which often measure only delta-9 THC content when 84 determining compliance. In practice, these testing methods frequently exclude other 85 psychoactive THC variants and precursors—such as THCa, delta-8 THC, delta-10 THC, and 86 THC-O—that may be present in significant concentrations. As a result, products marketed as 87 compliant hemp can still contain substantial total THC potential once all cannabinoid forms are 88 considered, undermining the intent of both the federal Farm Bill and state or territorial cannabis 89 regulations. Retailers exploit the definitional gap in federal and state hemp statutes—relying on 90 pre-decarboxylation testing methods that measure only delta-9 THC—to market psychoactive 91 cannabis products outside of licensed systems. The same loophole has begun to appear locally, 92 5 posing a challenge to both consumer safety and fair market oversight. A prohibition on THCa 93 that fails to distinguish between naturally occurring THCa within licensed cannabis and hemp- 94 labeled products intentionally sold for intoxication could inadvertently penalize legitimate 95 operators and undermine the regulated cannabis framework established under Act 8680. 96 Accordingly, the regulation of THCa should be approached with nuance, ensuring that 97 enforcement targets unregulated intoxicating products while preserving the lawful, controlled 98 handling of THCa within the licensed cannabis supply chain. 99 100 The Virgin Islands is not alone in confronting this problem. Numerous U.S. states have acted 101 decisively in recent years. States such as Alaska, Arizona, Arkansas, Delaware, Hawaii, Idaho, 102 and both North and South Dakota have moved to prohibit intoxicating hemp derivatives entirely, 103 classifying them as controlled substances. Others, such as Colorado, Minnesota, and Iowa, have 104 chosen instead to regulate these products by imposing strict potency caps, limiting per-serving 105 THC content, or banning chemical conversion processes altogether. In states like California and 106 Colorado, intoxicating hemp cannabinoids may only be sold within the licensed cannabis system, 107 thereby subjecting them to the same rigorous oversight as cannabis products. Some jurisdictions, 108 such as Minnesota, have also implemented a sales tax on hemp-derived intoxicating cannabinoid 109 products, directing revenue toward regulation and public health education, illustrating a further 110 policy tool available to governments beyond prohibition or potency limits. These examples 111 demonstrate that there is no single approach but rather a spectrum of regulatory responses, all 112 motivated by the need to protect public health and close regulatory gaps. 113 114 Bill 36-0105, as drafted, aligns most closely with those jurisdictions that have opted for outright 115 6 prohibition. This approach has several merits. It sends a clear message that intoxicating hemp 116 products have no place in the Virgin Islands’ unregulated marketplace. It also protects the 117 integrity of Act 8680 by preventing the emergence of a shadow industry that circumvents OCR 118 oversight. Moreover, it positions the Virgin Islands alongside a growing number of states that 119 have acted to protect consumers from unsafe and misleadingly marketed products. 120 121 At the same time, outright prohibition carries risks that merit the Committee’s attention. Because 122 federal law defines hemp by its delta-9 THC content, manufacturers have often argued that 123 products containing delta-8 or delta-10 remain federally lawful so long as delta-9 content 124 remains below 0.3 percent. Courts in some jurisdictions have entertained these arguments, 125 raising the possibility of legal challenges. Enforcement also poses practical difficulties: 126 identifying prohibited cannabinoids requires laboratory testing, which entails costs and technical 127 capacity that the territory must be prepared to support. A total ban may also drive demand into 128 the underground market, where risks are even higher. And without careful drafting, broad 129 prohibitions risk sweeping in benign non-intoxicating hemp products, such as CBD, hemp seed 130 oil, or industrial fiber applications, which are not the target of this legislation. In particular, the 131 inclusion of naturally occurring THCa in the prohibition would create a direct conflict with the 132 cannabis program, given that THCa is integral to all cannabis cultivation and sale regulated 133 under OCR. Moreover, because THCa is naturally present in virtually all cannabis flower, 134 prohibiting it outright would not only create contradictions in enforcement but also potentially 135 undermine the regulated cannabis market itself. This makes outright prohibition an imprudent 136 approach unless carefully carved to distinguish between regulated cannabis products and 137 unregulated intoxicating hemp products. 138 7 139 For these reasons, the Office respectfully recommends that the Legislature consider refinements 140 to the bill. The statutory definitions of prohibited substances should be clear and precise, 141 distinguishing between intoxicating cannabinoids produced through chemical conversion and 142 naturally occurring, non-intoxicating hemp derivatives. Safe harbors for CBD and other non- 143 psychoactive hemp uses should be explicitly included. The bill might also provide for a 144 regulatory pathway—should the Legislature wish to allow it—for intoxicating hemp products to 145 be sold only under OCR’s licensed cannabis framework, subject to the same safeguards of 146 testing, labeling, age restrictions, and taxation that govern cannabis. Such an approach would 147 give the territory flexibility while ensuring that consumer protection remains paramount. 148 149 To further strengthen enforcement and clarity, OCR also recommends the adoption of 150 standardized total THC testing protocols within the Virgin Islands. These protocols should 151 calculate total THC by combining the measured delta-9 THC concentration with the potential 152 conversion of THCa and other psychoactive variants, consistent with the USDA’s total THC 153 formula (Total THC = Δ9-THC + (THCa × 0.877)). Establishing a consistent, science-based 154 testing methodology would align the territory with best practices adopted in several U.S. 155 jurisdictions and ensure that all intoxicating potential is measured uniformly. This approach 156 would close the analytical loophole that allows products rich in THCa or other cannabinoid 157 isomers to be misclassified as legal hemp, thereby improving enforcement integrity, consumer 158 transparency, and market stability. 159 160 Finally, OCR recommends that the Legislature provide for adequate enforcement resources, 161 8 including access to laboratory testing and coordination among OCR, law enforcement, and the 162 Department of Health. The inclusion of legislative findings describing the public health rationale 163 and the necessity of the prohibition would also strengthen the bill’s defensibility against legal 164 challenge. Consideration might also be given to a sunset clause or mandatory review period, 165 ensuring that the policy is re-examined as science, market conditions, and federal law evolve. 166 167 In closing, the Office of Cannabis Regulation affirms the importance of Bill 36-0105 as a 168 proactive step to protect the health and safety of Virgin Islanders, particularly young people, and 169 to preserve the integrity of the regulated cannabis program. With the refinements suggested, the 170 legislation will provide the territory with a clear, enforceable, and balanced framework for 171 addressing intoxicating hemp products. The Office thanks the bill sponsors for this legislation 172 and stands ready to continue working closely with them to support the Legislature with technical 173 drafting assistance, stakeholder engagement, and regulatory implementation. 174 175 Thank you for your attention, and for the opportunity to again share testimony on behalf of the 176 OCR regarding Bill 36-0105. I welcome any questions the Committee may have. 177