Politics
Nebraska Lawmakers Advance ‘De Facto Ban’ On Wide Range Of Consumable Hemp Products
“We’re going to make felons of all the grannies that subscribe to Taste of Home magazine.”
By Zach Wendling, Nebraska Examiner
A legislative proposal to crack down on “synthetic” consumable hemp or other THC products advanced Monday over some opponents’ preference for regulations and not a “de facto ban.”
Legislative Bill 316, from state Sen. Kathleen Kauth (R) of the Millard area, would redefine most “hemp” products to mean “marijuana,” putting them legally in line with existing enforcement and penalties. It advances a key priority of Nebraska Attorney General Mike Hilgers (R) to restrict products that exceed 0.3 percent tetrahydrocannabinol (THC) concentrations, the compound most commonly associated with getting a person high.
“These compounds are masquerading as hemp but are in fact dangerous synthetic chemicals that have never been tested for consumption in humans,” Kauth said during debate.
‘We need to do something’
The bill advanced 33-13, though at least two supporters—state Sens. Tom Brandt (R) of Plymouth and Ben Hansen (R) of Blair—said the bill would need to be amended to maintain their support and overcome the 33-vote threshold for a filibuster. Three more centrist Democratic lawmakers declined to take a position on the bill: state Sens. Eliot Bostar of Lincoln, Jason Prokop of Lincoln and Dan Quick of Grand Island.
Multiple opponents said they preferred the regulatory regime proposed in LB 16 by state Sen. John Cavanaugh (D) of Omaha, the lead opponent to Kauth’s bill. Cavanaugh’s bill would need to hitch a ride on a different bill, or “co-opt” LB 316. Cavanaugh filed more than a dozen amendments to LB 316 to try.
“I’m opposed to hijacking other people’s bills, but I put it on here because I think people in this body will agree that we need to do something,” Cavanaugh said.
Cavanaugh described the goal of attacking only “synthetic” products as a “red herring,” “misnomer” and “misdirection” in part because chemical “synthetic marijuana”—K-2 or “spice”—has already been banned for more than a decade. Kauth’s broader bill on hemp-derived products, he said, would cost more than $1.6 million, at least, in state tax revenue, at a time the state faces a major projected budget deficit.
However, he said his bill could generate $7.7 million with an improved regulatory system.
‘Health and safety’
State Sen. Jared Storm (R) of David City, who selected LB 316 as his 2025 priority bill, said he repeatedly asked during a public hearing on Kauth’s bill what ingredients are in delta-8 products—a form of THC that is legal in the state under 2018 federal and 2019 state laws. He also asked where the items come from or who is manufacturing them, but “nobody could ever tell me.”
Hilgers was one of 43 lawmakers in 2019 who voted to enact the Nebraska Hemp Farming Act.
Storm said “effective regulation of this industry is impossible” and that the products are “garbage” attached to a little bit of cannabidiol (CBD) to vape, smoke or eat.
Storm said he would never jeopardize “the health or safety of our citizens of this state, especially children and young adults, for revenue.” State Sen. Brad von Gillern (R) of the Elkhorn area, chair of the Revenue Committee, agreed.
LB 316 would prohibit raw hemp above 0.3 percent THC of any concentration and for processed hemp the lesser of 0.3 percent THC on a total weight basis or 10 milligrams per package, effective January 1. The mature stalks of Cannabis sativa and its fiber, oil, cake and any other naturally derived products would not be considered hemp, leaving a narrow legal path for fibers and textiles.
If the bill passed, it would include a “consumer safe harbor period” through the end of 2025 to give consumers time to discard any “illegal hemp” newly defined under LB 316. Legal products would face an additional 10 percent wholesale tax.
‘Felons of all the grannies’
Cavanaugh and state Sens. George Dungan (D) of Lincoln and Danielle Conrad (D) of Lincoln, all lawyers, said the bill creates a “gray zone” where it’s unclear what would be legal and what would be a misdemeanor or infraction for possession or a more serious felony crime.
They said it could result in a “de facto ban” as a result.
State Sen. Wendy DeBoer (D) of Omaha, a former lawyer and vice chair of the Judiciary Committee that advanced LB 316 in a 5-3 vote, said LB 316 is part of a “felony factory” where products for lotions, creams or dog chew could lead to felony charges, or in the case of gummy-eating “grannies” who she said might have such products “in the back of their medicine cabinet.”
DeBoer said a cousin recently sent her a recipe from Taste of Home magazine for slow cooker cannabutter as a joke as LB 316 was set to be debated.
“We’re going to make felons of all the grannies that subscribe to Taste of Home magazine,” DeBoer said.
Brandt said it was “ridiculous” that people could face felony criminal possession charges. While he voted for the bill to move forward, he said that if the possession language was not amended, though he could not say to what extent it would need to be changed, he would not support it again.
Under state law, marijuana possession of more than 1 ounce but less than 1 pound is a Class III misdemeanor, while greater amounts are a Class IV felony. Smaller amounts can be up to a Class IIIA misdemeanor with up to a $500 fine or jailing for up to seven days for repeated infractions.
Brandt said he wanted to target “active ingredients” and protect Nebraskans who might have old CBD products at home that were legally purchased.
“This is hemp. This is not marijuana, guys,” Brandt said.
‘Whack-a-mole with regulations’
State Sen. Carolyn Bosn (R) of Lincoln, chair of the Judiciary Committee and a former prosecutor, disagreed with DeBoer and said it was a “clarification” rather than a new penalty.
“You’re playing whack-a-mole with trying to regulate this drug,” Bosn said, saying she opposed any effort to change Kauth’s LB 316 toward Cavanaugh’s LB 16.
Bosn also read information from the AG’s Office that of an estimated 300 THC stores in Nebraska, visitors to each of the ones the AG’s Office purchased from have found at least one unlawful product. The office has filed at least 15 lawsuits, some settled, in that ongoing push.
Cavanaugh said that was why regulations were needed and why “reputable” shop owners wanted new guardrails. His LB 16, in part, would prohibit sales near schools and require testing.
Dungan repeatedly referred to LB 316 as a prohibition-era law, similar to opposition to whiskey or bourbon, that didn’t prevent sales but instead created a “black market.”
“We all know history is a good predictor of the future,” Dungan said.
This story was first published by Nebraska Examiner.
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