INSIGHTS BLOG > Cannabis Grey and Black Submarket Dynamics

Cannabis Grey and Black Submarket Dynamics

Written on 05 March 2022

by Ruth Fisher, PhD

Pre-2018 Cannabis Submarkets
Post-2018 Cannabis Submarkets
Grey Market Cannabis Activity
More Nuanced Cannabis Submarkets
Regional Distributions of Cannabis Activity
References

Pre-2018 Cannabis Markets

Prior to 2018, all cannabis activity taking place within US states that had legalized some form of cannabis activity occurred within one of two submarkets (see Figure 1):

Marijuana Markets: Included all licensed activity involving cannabis products (cultivation, processing, sale, and use) occurring in areas (cities and states) that had legalized cannabis activity.

Black Markets: Included all unlicensed activity involving cannabis products.

Figure 1: Cannabis Markets

Post-2018 Cannabis Markets

In 2018, the US Farm Bill[1] created a new regulatory regime: licensed activity involving cannabis products with low concentrations of THC were legalized throughout the US. After that, cannabis activity taking place within any particular region now fell into one of three submarkets (see Figure 2):

Hemp Markets: Include all licensed cultivation, processing, and sales of cannabis products and all use of cannabis products with less than 0.3% THC.

Marijuana Markets: Include all licensed activity involving cannabis products with more than 0.3% THC (cultivation, processing, sale, and use) occurring in areas (cities and states) that have legalized cannabis activity.

Black Markets: Include all unlicensed activity involving cannabis products.

Figure 2: Cannabis Submarkets

Hemp Markets

Hemp can be used to produce thousands of different industrial, food, and medical products. Currently, however, the vast majority of hemp grown in the US is grown for its resin, from which cannabinoids, notably CBD, are extracted. It is the market for hemp/CBD products that is the focus of the current discussion.

While only moderately regulated, Hemp Markets do have some restrictions, including the following. First, hemp growers and processors – but not sellers or users – must be licensed by the US Department of Agriculture[2] and by the State.[3] Second, hemp products can generally be shipped across state borders using standard delivery services (e.g., USPS, UPS, FedEx), although there are some restrictions.[4] This means the market for hemp products is national, rather than only regional, in scope. Third, hemp cultivators and processors must regularly test their products to ensure THC levels remain below 0.3%. And last, hemp licensees are required to report their activities (cultivation, production, and sales volumes) to the USDA and to the state.

Hemp Market license fees and costs of compliance are relatively moderate, and market participants pay the standard sales and income taxes on their respective activities. Hemp product suppliers are required to test their products regularly to ensure they do not exceed the 0.3% THC threshold. However, products are not required to be tested for profiles of compounds or for the presence of pesticides, molds, heavy metals, or other toxins. While lack of required testing creates a lack of transparency as to product contents and quality, it also eliminates a cost of doing business for suppliers. Taken as a whole, then, prices of hemp products are generally reasonable, since they do not have to cover any excessive costs of doing business.

Marijuana Markets

The cultivation, processing, sale, and use of marijuana products are all state-sanctioned activities, that is, providers must be licensed by the state to grow, process, sell, and, in many cases, use marijuana. Additionally, in many states, the cultivation, processing, and sale of marijuana products must be further approved by the city. In most cases, licenses are scarce, costs are high (thousands to tens of thousands of dollars), if not extremely high (hundreds of thousands of dollars),[5] and regulations are strict. In most cases, compliance with marijuana regulations is quite burdensome; that is, high time and/or money costs are required to satsify the regulations.

Furthermore, in addition all standard sales taxes, state and local governments impose excise taxes and supplementary sales taxes on marijuana market activity.[6] As for income taxes, marijuana businesses are considered illegal at the Federal level. Income tax liabilities therefore adhere to Section 280E of the tax code, which limits the expenses that marijuana businesses can deduct when determining taxable income.[7] As a result, marijuana businesses pay much higher levels of income taxes than other federally legal businesses.

Taken together, the substantial licensing fees, costs of compliance, and income tax rates force legal and compliant marijuana businesses to charge high prices to cover their costs of operations.

Black Markets

An essential distinction is that between unlicensed activity and noncompliant activity. Unlicensed activities or transactions are those that occur by a party or between two parties, neither of whom is licensed to participate in local marijuana markets. Noncompliant activities or transactions are those that occur by or between two parties, where at least one party is licensed to participate in local marijuana markets, even if the activities do not fully comply with all local marijuana market regulations.

This distinction is critical because it determines the jurisdiction under which enforcement falls. Unlicensed activity is generally criminal in nature and subject to criminal prosecution, including potential seizure (of cash and/or product) and incarceration.[8] Noncompliant activity, on the other hand, generally involves business penalties, fines, and/or loss of license, but it generally does not carry the threat of seizure or incarceration (although there are plenty of examples of seizures associated with licensed activity).

Because Black Market suppliers don’t incur the high costs of complying with laws, regulations, and taxes, Black Market marijuana suppliers can generally undercut licensed suppliers on price, often significantly.

Grey Market Cannabis Activity

The market subdivisions discussed above and illustrated in Figures 1 and 2 provide a crude picture of actual cannabis market activity. A more refined discussion recognizes that there is a lot of grey market activity taking place in cannabis markets.

The term grey market activity generally refers to activity involving product diversion. That is, the product or service being transacted is generally legal, but the transaction is taking place in a channel that is not authorized or intended by suppliers.[9]

In this discussion, however, I use the term grey market activity to include activities that are legally ambiguous, that is, activities for which the law is not clear regarding whether or not the activity is illegal. In cannabis, there is a large amount of room for legally ambiguous activity, for several reasons.

First, legal cannabis markets are a new phenomenon. The laws and regulations distinguishing legal from illegal cannabis market activity are still being drafted. As a result, the laws are both imprecise and incomplete. Even when they involve the simplest of activities, imprecise and incomplete laws leave plenty of room for grey market activity. And cannabis is anything but simple. Over time, after plenty of legal wrangling, lawsuits, and new regulations, much of the imprecision and incompleteness will be addressed, but this will take years.

Second, cannabis science and technology are evolving at an extremely rapid pace. Since

(i) science always precedes law (i.e., new activities must become feasible before associated laws can be enacted), and

(ii) law is generally created to limit (as opposed to enable) activity, together with

(iii) the rapid pace of evolution in cannabis science and technology,

it follows that much activity is springing up that will eventually become illegal.

Third, lured by the prospect of potentially great wealth, new entrants have flooded into nascent cannabis markets – where much enabling infrastructure is missing. Massive entry is creating volatile markets. At locations all along the supply chain, supply and demand are over- or under-shooting one another, exacerbating market volatility and forcing participants to find creative ways to satisfy their needs.

More Nuanced Cannabis Submarkets

I find cannabis to be a fascinating market, due to all the nuances associated with its supply and demand. The fact that cannabis activity is inherently intertwined with Black Market activity makes the market that much more interesting from an economic and game theoretic perspective. All this nuance makes the apparent simplicity of Figure 1 extremely misleading, since it fails to capture the massive complexities associated with cannabis.

The submarkets in Figure 2 are more interesting than those portrayed in Figure 1, since they include an additional dimension of activity. However, the representation is still extremely lacking.

A more nuanced recognition of the activities actually occurring in cannabis submarkets would assuredly be more complex and thus more interesting. One such depiction is that presented in Figure 3, which includes 2 legal markets, 2 grey markets, and a black market.

Figure 3: Cannabis Submarkets

I purposely squished all the boxes together in my depiction of the markets, because I see them as being interconnected, if not also overlapping. In fact, perhaps a better depiction would be Figure 4.

Figure 4: Cannabis Submarkets

The descriptions for the Hemp Legal Market, Marijuana Legal Market, and Marijuana Black Market are described above. Let’s now characterize the grey markets.

Hemp Grey Market

The three issues discussed in the previous section – imprecise laws, evolving science and technology, and significant new entry – have all helped fuel a large grey market in hemp activity. What I refer to as Hemp Grey Market activity includes the production, sale, and use of psychoactive substances that are derived from CBD, currently Delta 8 THC (“Delta 8”), HHC, and THC-O. Since these substances are derived from CBD, some argue that they fall within the hemp regulatory regime. Yet, since these substances are psychoactive, others argue they belong under the umbrella of marijuana activity. By selling these substances as hemp products, suppliers avoid the heavy licensing, compliance and taxation costs associated with providing marijuana products. Perhaps more notably, by selling Delta 8, HHC, and THC-O as hemp rather than marijuana products, suppliers are able to sell and ship their products nationally, rather than being constrained to only selling in local (city) or state markets.

Imprecise Laws

Hemp Grey Market products, such as Delta 8, HHC, and THC-O, are psychoactive cannabinoids that are derived from CBD and sold in hemp markets. Delta 8 and HHC are both cannabinoids that occur naturally in cannabis plants, but in minute amounts, while THC-O does not occur naturally. All three cannabinoids can be created by chemically altering CBD, where:

HHC is said to be less potent than Delta 8.[10]
Delta-8 is said to be about half as potent as Delta 9 THC (“THC”).[11]
THC-O is said to be 300% as potent as THC.[12]

The 2018 Farm Bill, which legalized hemp activity, defines hemp as follows:

HEMP.—The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.[13]

According to the letter of the law, hemp includes any derivative of cannabis plants that have less than 0.3% THC. According to the law, then, any cannabinoids that are derived from CBD — other than THC — are legal. It follows that, since Delta 8, HHC, and THC-O are all derived from CBD, these cannabinoids may be legally produced and sold in hemp markets.

The tension here is this. The explicit exclusion of THC suggests that the intent of the law was to exclude from hemp markets any activity involving psychoactive cannabinoids. Delta 8, HHC, and THC-O are all psychoactive.

One interpretation of the situation is that had the drafters of the law been aware of the existence of psychoactive cannabinoids other than THC, they would have explicitly excluded those substances from being legally included in the hemp laws. Under this interpretation, psychoactive cannabinoids such as Delta 8, HHC, and THC-O would not have been included in the hemp laws. In this case, while Delta 8, HHC, and THC-O activity may be legal under the letter of the law, they were not intended to be legal.

The 1989 Federal Analogue Act (FAA) further supports the notion that THC-O, and perhaps also Delta 8 and HHC, were not intended to be legal under the Farm Bill. The FAA indicates that if Delta 8, HHC, and/or THC-O

(i) Are structurally similar to THC, or

(ii) Have similar or more potent stimulant, depressant, or hallucinogenic effects as those induced by THC, or

(iii) Are expected to have similar or more potent stimulant, depressant, or hallucinogenic effects as those induced by THC,

then those substances should be classified as Schedule I substances, that is, they are not legal under the Farm Bill.[14] The chemical structures of Delta 8, HHC, and THC-O may be considered “substantially similar” to THC. It is also true that Delta 8, HHC, and THC-O have substantially similar effects on the body as THC, and the effects of THC-O are at least as potent as those of THC. The FAA thus suggests that THC-O, if not also Delta 8 and HHC are not legal under the Farm Bill.

Activity involving Delta 8, HHC, and THC-O is thus legally controversial. Some two dozen states have passed laws that ban the production or use of Delta 8.[15] However, no states have explicitly banned HHC or THC-O. HHC and THC-O are both less popular than Delta 8, so perhaps states have not commented on their production or use because they’re not (yet?) a big enough issue.

Flood of New Entry

The second big factor supporting Hemp Grey Market activity is the large availability of CBD, the primary input used to make Delta 8, HHC, and THC-O. The Farm Bill opened the floodgates to a potentially highly lucrative market, and the promise of large profits attracted substantial numbers of farmers to that market. Despite the large up-front costs and often unanticipated difficulties in cultivating hemp, harvests quickly overshot demand by a wide margin. Hemp harvests peaked in 2019 at 134,059 acres, then dropped precipitously to 33,844 acres in 2020,[16] due to the massive supply glut with “millions of pounds of unsold hemp biomass.”[17]

Oversupplies of biomass caused prices to crash: Hemp Benchmarks reports that the wholesale price of hemp biomass plummeted by about 80% from May 2019 to May 2020, at which point prices stabilized somewhat at these lower levels.[18] By the middle of 2019, then, CBD became easily and cheaply available.

Evolution of Cannabis Science and Technology

The third big factor supporting Hemp Grey Market activity is rapid recent development of cannabis science and technology. Delta 8 and HHC were both discovered during the 1940s, while THC-O was discovered sometime between 1949 and 1974.[19] Studies suggest Delta 8 may have positive therapeutic effects,[20] and users of all three substances report therapeutic effects, for example, in terms of increased energy and decreased pain.[21]

As mentioned in the introduction to this section, Delta 8 and HHC are both found naturally in cannabis plants, but in quantities too small to make commercial extraction cost-effective. However, in 2001, Raphael Mechoulam and colleagues figured out and patented a method for chemically converting CBD into Delta 8.[22] So, instead of having to extract the two cannabinoids in tiny amounts from cannabis plants, suppliers could now derive more abundant quantities of Delta 8 and HHC artificially from CBD.

Before the enactment of the Farm Bill, however, extracting Delta 8 and HHC from natural sources, or even producing them from CBD, were both too expensive an endeavor to support viable commercial activity. However, the glut in CBD supply following the legalization of hemp provided a cheap and ready supply of CBD. The tremendous availability of CBD stimulated advances in science and technology supporting extraction and purification of CBD, together with conversion into alternative substances (as entrepreneurs sought new and different uses for the readily available CBD).

Unintended Consequences

Favorable market conditions, together with evolution of science and technology, thus enabled the conversion of CBD into Delta 8, HHC, or THC-O. What makes this endeavor particularly profitable is that by providing these substances in Hemp Grey Markets, suppliers have avoided the heavy licensing, compliance, and tax costs required for psychoactive products supplied in Marijuana Legal Markets.

There’s more. Similar processes as those used to produce Delta 8, HHC, and THC-O from CBD can also be used to convert CBD to THC. Alternatively, THC can be aggregated from hemp supplies to provide intoxicating quantities of THC that are combined with large enough quantities of CBD so that products still remain under the 0.3% threshold.[23] We thus end up with a perverse situation: Hemp Market-derived CBD can be converted into THC for sale in Marijuana Markets. In some markets, suppliers of this CBD-derived THC can undercut sellers of naturally produced THC, due to the heavier cost burdens associated with cultivating and extracting THC in Marijuana Markets.

Perverse market conditions – a combination of legal ambiguities, gluts in supply of CBD, and advances in cannabis science and technology – are thus increasing competition in both Legal Hemp Markets and in Legal Marijuana Markets: Legal Hemp Market suppliers are losing sales of CBD to Delta 8, HHC, THC-O, and Legal Marijuana Market suppliers are losing sales of naturally-produced THC to CBD-derived THC.

Marijuana Grey Market

I define Marijuana Grey Market activity to include the cultivation and sale of marijuana by suppliers who have a license from the state to cultivate and/or sell marijuana, but who do not comply with any of the associated regulations, including grow limits, testing and reporting requirements, resale restrictions, sales tax collection and remittance, or income tax remittance. Marijuana Grey Market activity is fueled primarily by (i) massive influxes of new activity into states’ Marijuana Markets, combined with (ii) limited availability of state and local resources for enforcing cannabis laws and regulations. Neither cannabis administration agencies nor law enforcement agencies have the resources needed to enforce legal and compliant marijuana activity. The enormous influxes of new entrants, who are engaging in all types of cannabis activities, have provided the perfect environment of chaos for Marijuana Grey Market activity to flourish.

Regional Distributions of Cannabis Activity

Thus far I’ve outlined the general spectrum of cannabis activity that occurs in US markets. Now, can we say anything about the expected distribution of activity across submarkets that occurs in particular state and/or local markets? In other words, which factors increase or decrease grey market activity relative to legal activity in local markets?

Several factors specific to local markets change the relative costs and benefits to suppliers and consumers of participating in Legal vs. Grey vs. Black Markets: regulatory costs, market prices, availability of psychoactive products, and legal risks associated with participating in each submarket. The impact of each factor on the distribution of activities across cannabis submarkets is discussed below and summarized in Figure 5 and Figure 6.

Before jumping into the discussion, it’s important to recognize that legal market, grey market, and black market products each involve very different constraints on product flows from one region into the next.

Legal market marijuana activity is constrained to the state in which it is licensed. That is, all cultivation, processing and sales of cannabis in, say, California, must occur with the state of California. No marijuana activity is legally allowed to cross state lines. Furthermore, marijuana products are not legally allowed to be shipped through the mail, even within the state. Rather, all transportation of marijuana products from one location to another must be carried out by licensed marijuana transporters. So, then, Legal Marijuana Markets are necessarily confined to local, if not state-wide activity. The local nature of Legal Marijuana Markets serves to limit both supply and demand for Legal Marijuana Market activity.

Hemp market plants and plant products, however, are legally allowed to cross state lines, and they may be sent through the mail. Legal Hemp Markets are thus national in scope, which means local areas with higher demand for products will attract inflows of products from suppliers nation-wide.

Cannabis Black Market activity is, by its very nature, illegal. Activity flows nationally from lower demand regions to higher demand regions using underground transportation systems.

In short, Marijuana Legal Market participants are at a significant disadvantage vis-à-vis Hemp Market and Marijuana Black Market participants: Marijuana Legal Market participants are forced to make do with whatever is available in local markets, while Hemp Market and Black Market participants enjoy the much greater availability and variety that larger, national markets have to offer.

Figure 5: Cannabis Submarkets

Figure 6

Consumers

Most people generally want to obey the law.[24] Consumers thus tend to buy products legally, rather than illegally, even if prices are a little higher in legal markets. That said, consumers value factors other than legality when deciding among cannabis products for purchase and use. Some of the more important of these other factors include: product price, regulatory costs associated with buying cannabis, level of cannabis psychoactivity, and product accessibility.

Product Price

The taxes, regulations and other costs associated with supplying cannabis products in legal markets are significant. These large added costs of supply induce large price premiums for legal market marijuana products, relative to those in both legal and grey markets for hemp and in illegal markets for marijuana (see Figure 7). While consumers will generally pay somewhat higher prices for products that are legal, many people will switch to illegal markets when the legal market price premiums are too high.

Figure 7: Composition of Cannabis Prices

Cannabis regulatory costs and tax rates differ substantially by state, if not also by city. States and regions with higher regulatory costs and tax rates, and thus higher legal market prices, will experience greater portions of their cannabis activity in Black Markets.

Psychoactivity and Product Accessibility

Humans have an innate desire to experience psychoactivity.[25] If psychoactive products are not available legally, then many people seek them out in Black Markets. It follows that Hemp Grey Markets should be more active in regions for people who (i) are more inclined to follow the law (i.e., prefer Grey Markets to Black Markets) and (ii) don’t have relatively cheap and easy access to Legal Marijuana Markets. Similarly, Black Markets should be more active in regions where people don’t have relatively cheap and easy access to Legal Marijuana Markets

Indeed, cannabis sales data indicate that Hemp Grey Market activity – sales of Delta 8, HHC, and THC-O – appears to be greatest in markets where marijuana activity has not been legalized.[26] Furthermore, the DEA reported that legalization of marijuana drives out Black Market activity: “state-level marijuana legalization reduces instances of illegal interstate trafficking.”[27]

Producers

As with consumers, producers generally want to obey the law. However, high costs of complying with all legal market laws and regulations make it difficult for suppliers to participate in Legal Markets. On the other hand, legal market suppliers do not face the same legal risks that Grey and Black Market suppliers face. The greater the legal risks – for either legal or illegal market participants – the higher the prices suppliers must charge to cover their costs. The trick for governments, then, is to establish an appropriate combination of regulatory costs and legal risks to achieve the balance of Legal vs. Black Market activity they deem acceptable.

Regulatory Costs

Higher regulatory costs force suppliers to charge higher prices, which makes it more difficult for Legal Market suppliers to compete with Black Market suppliers. All else equal, then, regions with higher regulatory costs will see a greater portion of their cannabis activity taking place in Grey/Black Markets.

Prices

Two other factors in addition to high taxes, regulations and other costs associated with supplying cannabis products in legal markets contribute to greater Black Market activity in some regions than others. First, differences in growing conditions contribute to cross-market differences in costs of supply, and therefore product prices. States and regions with less friendly cannabis cultivation climates – e.g., areas with suboptimal temperature, lighting, water, humidity, etc. – will generate lower yields and thus higher prices for cannabis products. These areas will tend to experience greater Black Market activity as lower-cost cannabis from more favorable growing regions flow into higher-cost regions.

And second, as with regions with higher Legal Market prices due to unfavorable growing conditions, regions with higher Legal Market prices due to high user demand will also tend to experience greater Black Market activity, as lower-cost cannabis from lower demand regions flow into higher-demand regions.

Legal Risk

Products for which suppliers face legal risks carry price premiums to cover those risks. Legal risk is greater in both Grey and Black Markets than it is in Legal Markets, causing higher risk premiums on Grey and Black Market products than Legal Market products. These risk premiums tend to somewhat mitigate the price advantage Grey and Black Markets enjoy over Legal Markets due to the former’s lack of regulatory costs.

Legal risk includes the risk of penalties and fines for noncompliance by participants in Legal Markets, and it includes risk of fines, seizure, and incarceration by participants in Black Markets. The estimated risk suppliers face is a product of the probability of getting caught (either not complying or breaking the law) and the damages paid if caught:

Estimated Legal Risk = {Probability of Being Caught} x {Magnitude of Damages If Caught}

Regions can thus increase legal risk, and decrease Grey/Black Market Activity, either by increasing the chance that illegal activity is detected (i.e., by increasing enforcement) and/or by increasing fines or length of incarceration.