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WSAZ Investigates | Hidden High

WSAZ Investigates | Hidden High
Published: Apr. 28, 2022 at 5:06 PM EDT|Updated: Apr. 28, 2022 at 6:36 PM EDT
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CHARLESTON, W.Va. (WSAZ) - Officials are warning about potentially deadly products that look just like some of your child’s favorite foods, including popular chips, cookies and candies. These products are being sold as non-active hemp products, but have been found to actually contain high levels of THC, the active ingredient in marijuana.

One of the products that was found during a random sampling of hemp products looks like a normal bag of Doritos, but is a knockoff package with 600 mg of THC. State Police said that is equivalent to smoking around three joints of marijuana. Other products have copycat branding to appear like Oreos, Sour Patch Kids, Nerds Rope and Froot Loops.

“We’re very concerned about these products because one there they haven’t been safely tested, two they do have marijuana in them,” said Amie Minor, director of regulatory and environmental affairs for the West Virginia Department of Agriculture. “They are actually labeled and packaged so that they’re very attractive to children, or younger people and they don’t know what they’re actually getting. The consumer may actually get sick, or even die potentially, because they’ve consumed these products. We don’t know the severity of the reaction that someone would have, if they purchased this on the shelf and didn’t know what they were consuming.”

The West Virginia Department of Agriculture is charged with consumer protection and regulating the state’s food supply to ensure products are safe for consumption and what is listed on a package is actually inside, deputy director of laboratory services Josh Arbaugh said. Inspectors go into stores and pull items off the shelves for random testing, trying to weed out any illegal items. The hemp testing lab also analyses any new products that are being registered in the state or have been reported by consumers.

These products, that are being sold as hemp but are actually recreational marijuana, have flooded onto shelves in stores across the state during the past few months, Minor said. There have already been several hospitalizations linked to these products, but at this point there have been no confirmed deaths.

You are legally allowed to sell hemp products in West Virginia, but they must be grown naturally and contain less than 0.3% THC. Examples of legal hemp items include CBD oil and Delta 8.

The Department of Agriculture said many of the products they found being sold as hemp have a higher level of THC closer to 10 or 15%, which makes them a marijuana product. This is only legal in West Virginia as medical cannabis and is federally illegal.

Officials said the most dangerous products they’ve found have a synthetic, manmade version of marijuana known as THC-O. This is illegal across the entire country, and is so powerful it can easily cause an overdose or death. These chemicals have mostly been found in vape products that also have attractive candy branding.

Most of these illegal hemp products coming into West Virginia are from California, Minor said. Many even have stickers covering up the marijuana warning labels, and new products are constantly coming into the state making it nearly impossible to stay ahead of the issue.

“Staying ahead of the curve (is the biggest challenge),” Arbaugh said. “Some people knew that they were selling illegal products. Some did not, and they tried to register them. They thought that it was a hemp product and they didn’t realize until we reached out to explain the situation. It’s the same with the other recreational products. We thought they would be very few and far between, and then they flood the marketplace very, very fast.”

Arbaugh said testers are not surprised when they find the actual level of THC in a product because they often just have a “crudely placed sticker over the actual product.” He described the stickers as something that anyone could print off at home and they do not even fully cover the marijuana warning labels on packages.

“I would encourage people that if you’re going into these places, take a good look at the label,” Arbaugh said. “Look for a sticker that’s placed over top of packaging. It’ll be a large red flag that there’s something wrong with that product. And know that Doritos, Nerds and these other manufacturers, they’re not going to approve their label to be used for these types of products. So if you see that packaging, you already know that that’s an illegal product that may be contaminated with something that you don’t want to ingest yourself. Not just THC that’s over legal limits, but there could be other contaminants as well.”

Will Thompson, U.S. Attorney for the Southern District of West Virginia, said he has a similar concern. He said many of these counterfeit products are being sold to West Virginia stores by out-of-state shell companies that dissolve within days of distribution. That makes it very hard to track these drugs and make arrests, and could lead to bigger problems like what is being seen with the opioid crisis.

“Obviously, we’re dealing with a huge fentanyl issue in the state of West Virginia right now, lots of overdoses, deaths that are associated with it,” Thompson said. “Fentanyl is very cheap, very easy to get. And a lot of times in my experience, dealing with people who suffer from addiction, they want to do things that have the higher potency. You don’t have to stretch your imagination very much to say that the same corporations, who are not legitimate corporations, would not hesitate to put other substances, such as fentanyl, into these products to give the higher potency and encourage more addicts to use them.”

Thompson said his office is working with the DEA every day to find illegal and dangerous products like these, but new products are also constantly coming out that might not have clear regulations. Instead, he is trying to focus on consumer education to prevent people from buying these products.

“Our law enforcement is stressed to the max right now,” Thompson said. “It’s somewhat unrealistic to expect we’re going to go into every convenience store with DEA agents and state troopers and the like to ride these, because we’ve got a lot of other issues we’re dealing with. That’s not to say we’re turning a blind eye to it, we are not. But, one of the things I want to make people aware of that these products while they might come in bright, shiny packages, and look like something that’s marketed to children, they are definitely not for children.”

Enforcing the laws around these products has proven to be a challenge for the Department of Agriculture. Minor said when they first noticed the issue, they reached out to West Virginia State Police and were told troopers are busy focusing on harsher drugs like methamphetamine and heroin.

WSAZ sat down with First Sgt. Mike Smith, who has overseen State Police marijuana operations for more than a decade, to see what is being done to fix this issue. Smith said there is very little troopers can do about these products because of the way the state code is written giving Agriculture initial oversight. He is concerned these products could become as widespread as tobacco if they are not properly managed.

“Without a formal complaint being made from the Department of Agriculture to where they have done a quantitative analysis to say that this product is well above the 0.3 percent THC, and they’re outside of their scope of practice -- meaning that it’s not protected by the Hemp Act, it’s also not protected by the Farm Bill. At that point, then it would convert back over to being a criminal investigation to which that would give us a reasonable suspicion to where we could go at that point and conduct an investigation. We would then reach out to the local prosecutor in that jurisdiction and get their advice and to see if that is something they would be interested in actively pursuing.”

Smith said State Police has not been given a single case for a criminal investigation at this point. A Department of Agriculture spokesperson confirms that is correct because “when our staff reached out they seemed uninterested in our case, so the Department felt discouraged pursuing further action.”

Instead, the Department of Agriculture sent a letter to all hemp retailers across the state notifying them that these products containing high levels of THC are illegal and can’t be registered. They are also sending packages to every county sheriff across West Virginia with photos of the illegal hemp items and information about the dangers if people eat these without knowing what is in them.

However, Agriculture does have the ability to do more to get these products off shelves through embargo, or recalling, items that do not meet its regulations.

“Our regulatory officers do have the ability, they’re out there every day to embargo,” Minor said. “But, sometimes when they walk in and try to embargo these products to pull them off the shelf, there is that contentious interaction. We’re starting to see safety concerns and have safety concerns for our staff out there in the field. We really need some assistance, and everybody’s assistance, in this matter to make it a joint effort to ensure that everybody does this as safely as possible.”

So, we asked Smith if State Police would send troopers along with Department of Agriculture enforcement officers to ensure they are able to safely do their job. Smith said that would have to be on a case-by-case basis because of how many gas stations and other retail establishments across the state are selling these illegal hemp products.

“We wouldn’t have the manpower to simply send somebody out all the time with the Department of Agriculture,” Smith said. “If we’re going to send somebody out with the Department of Agriculture, why wouldn’t we be enforcing these regulations from the beginning if you have to send the state trooper out with them?”

“That’s how the code was written, is it was the Department of Agriculture that does enforcement,” Smith said. “If somebody doesn’t want to give up a compliance, and does not want to submit to the Department of Agriculture, they should yank their license from them at that point, anyway, automatically.”

The Department of Agriculture said the most important thing parents can do is sit down with your children and make sure they know these copycat packaged products are not safe to eat. They are also asking anyone who sees these products to call and report the issue so the items can be tested by the hemp lab.

A number of manufacturers of the real products, including Hershey Company, Mondelez Canada and Ferrara Candy Company, have started legal action against a few of the companies selling the knockoff products.

A Department of Agriculture spokesperson said they have not reached out to the manufacturers of the legitimate chip, candy and cookies to see if they were aware their product is being fraudulently mimicked and sold as illegal products because they are mainly concerned with companies trying to register products to sell that are illegal in the state.

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