The governor’s ban on intoxicating hemp products hit a delay Wednesday after Missouri Secretary of State Jay Ashcroft rejected the emergency rules detailing how it would have been enforced.
Gov. Mike Parson signed an executive order earlier this month to remove all hemp-derived THC edibles and beverages from store shelves and threatening penalties to any establishment with a Missouri liquor license or that sells food products for selling them.
It was supposed to take effect on Sept. 1, pending Ashcroft’s approval of the emergency rules. And now that will likely be delayed until for at least six months, Parson said in a strongly-worded letter to Ashcroft on Thursday.
“As best I can tell, you denied this emergency rulemaking because you believe hurt feelings are more important than protecting children,” Parson said.
The governor seemed to be implying the decision was inspired by Parson’s support for another candidate besides Ashcroft in the GOP gubernatorial primary.
Ashcroft finished third in the primary, with Parson’s pick — Lt. Gov. Mike Kehoe — winning the nomination.
“This is a personal matter for thousands of parents and grandparents across the state, and denying the rulemaking is your attempt at retribution for my endorsement of another candidate,” Parson said. “Safety of kids is not a political issue. I am disgusted that you are making it one.”
JoDonn Chaney, spokesman for Ashcroft’s office, told The Independent Wednesday that the rules were rejected because they didn’t meet the state law’s criteria. The secretary reached out to the Parson administration to provide an opportunity to explain how the rules met the requirements and got not response, he said.
“Secretary Ashcroft has a discretion to determine what constitutes an emergency rule and there’s guidelines in statute that dictate,” Chaney said.
If Ashcroft would have approved the emergency rules, they would’ve been implemented after 10 business days, since there would be no public-comment period, Chaney said.
However, now the rules will have to go through the standard rules procedure, which will take several months.
“It opens it up for a 30- or a 60-day comment period,” Chaney said, “where individuals on both sides can comment on the rule.”
From there, it will be debated among the members of the Joint Committee on Administrative Rules, a 10-member body of both state representatives and senators.
However, the rules actually don’t need to be approved for the ban to go into effect, said Lisa Cox, spokeswoman for the Missouri Department of Health and Senior Services.
The proposed rules include one sentence: “No retailer shall sell, or deliver, hold or offer for sale any food, drug, device or cosmetic that has been embargoed by the Department of Health and Senior Services pursuant to [state statute.]”
It refers to the state law that gives DHSS the authority to embargo products without any administrative rule in place. It means that DHSS regulators would have to go to each retailer individually and put an embargo tag on the products they’ve deemed “adulterated, or so misbranded as to be dangerous or fraudulent.”
Then the department would have to go before a circuit court judge to petition that the products need to be embargoed. If the judge sides with the retailer, then the tag is removed.
“The governor has directed DHSS to use our current authority to enforce these products under the Missouri Food Code, which would not require the emergency rule,” Cox said. “We can begin enforcement (embargo of products) on Sept. 1.”
However, without the approval of emergency rules, Cox said DHSS would be acting “without the enforcement authority and support” of the Division of Alcohol and Tobacco Control.
“It does not appear to me that the government has really thought through this plan very well,” said Chuck Hatfield, an attorney representing the Missouri Hemp Trade Association. “And now the Secretary of State has rejected a rule. And, I hope that they’ll reconsider the whole thing.”
Hatfield said regulation of the hemp industry should be handled through a bill that’s debated and voted on by the legislature. For the last two years, the marijuana-industry — which has been a major political donor to Parson — has led an unsuccessful effort to convince the legislature to ban hemp-derived THC products outright.
“Trying to do it through executive order and bureaucratic action is just not good government,” Hatfield said. “And I think the Secretary of State today, in part, recognized that.”
At his Aug. 1 press conference, Parson pointed to products that mimic trademarked candy but contain hemp-derived THC as a big reason why he issued his executive order banning all intoxicating hemp products.
These products have been allowed to be sold in Missouri outside of licensed cannabis dispensaries because the 2018 Farm Bill legalized hemp.
Missouri Department of Health and Senior Services Director Paula Nicholson warned families about the fact that these hemp products on the shelves are not regulated by any state or federal authority during the same press conference. So there’s no way to ensure they’re safe, she said.
“We have seen the negative impacts first hand,” she said. “Disturbingly, children in Missouri and across the nation have been hospitalized after ingesting these substances. This is unacceptable.”
However, Parson did not address the fact that thousands of retailers statewide are currently selling hemp-derived beverages in bars and liquor stores and require people to be 21 to purchase them.
Steven Busch, owner of Krey Distributing, said everyone in the hemp industry agrees that those bad actors that Parson mentioned should be taken off the shelves.
But the governor failing to address the impact it would have on thousands of bars, liquor stores and grocery stores was “disingenuous” and “bordering unethical,” said Busch, whose company distributes 11 different hemp beverages in eastern Missouri.
“This executive order singled out any retailers that have a liquor license and said that they cannot sell the products,” Busch said. “So that’s pretty much all of my customers that are currently selling.”
Since March, Busch has led an effort to establish regulations for these beverages and edibles by working with various lawmakers to write legislation. It’s set to be filed in December.
