Developments in six states this month reflect the growing national movement to crack down on hemp-derived delta-8 THC and other intoxicating hemp compounds that have flourished due to a loophole in federal law.
The six – Virginia, Illinois, Indiana, Louisiana, Texas and Connecticut – have either enacted or are considering outright bans, or strictly regulating the substances, which are widely available in common retail outlets under no age limitations and often marketed in packaging that appeals to children.
“This loophole soon caused an alarming public health crisis,” according to a brief written by attorneys representing the state of Virginia, where the number of calls to poison control centers involving children under 5 who had consumed edibles containing the substances rose from about 200 in 2017 to more than 3,000 in 2021. The national network of poison control centers said nearly 8,000 people reported adverse effects after consuming products containing intoxicating hemp compounds between 2021-2023.
‘Ton of problems’
“In the absence of us doing anything, there’s just this huge legal gray area, and it breeds a ton of problems,” said Indiana State Rep. Jake Teshka, who authored an unsuccessful attempt to regulate the intoxicating hemp products during his state’s last legislative session.
The products are sold as an alternative to marijuana, which contains the psychoactive compound delta-9 THC. In addition to delta-8 THC – the most popular of the intoxicating hemp compounds – the troublesome “high”-producing substances at issue include THCA, delta-10 THC, THC-O-acetate, HHC, THCP and others. Most of the substances start with hemp-derived CBD base material that then goes through a synthetic process.
States throughout the U.S. are working to get their arms around the runaway market for the products – referred to variously as “diet weed,” “marijuana light,” or “gas station pot” – which are sold in convenience stores, bodegas, CBD shops and other retail outlets in the form of gummies and other edibles.
Serious safety concerns
The U.S. Food & Drug Administration (FDA) has repeatedly warned consumers about hemp-derived intoxicants, noting that the unregulated and often unsafe products may contain harmful chemicals, and therefore should be kept away from children and pets. The FDA has also warned producers that the products are not categorized under GRAS (generally recognized as safe) guidelines and that any food containing the compounds is therefore also adulterated. Laboratories that test cannabis say they have found as many as 30 undesirable byproducts – chemical compounds that are made accidentally during the process of synthesis – in the intoxicating hemp products.
“There are legitimate uses for hemp products — from biofuels to plastics, from fiber to food, and building materials. I have no objection to those products,” said Sen. Thomas Pressly, who sponsored legislation in Louisiana. “It is the intoxicating, synthetic, lab-created products with THC that my bill focuses on.”
Federal action stalled
The 2018 U.S. Farm Bill legalized industrial hemp as “any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers,” with no more than a 0.3% THC content. But the legislation did not anticipate the emergence of synthetic intoxicants based on CBD from the hemp plant’s flowers.
After the market for over-the-counter CBD extract health aids boomed and then busted beginning in 2019, companies left holding backlog CBD stocks started selling them to the dodgy producers of the psychoactive compounds, which quickly spread into what’s estimated as a multi-billion dollar subsector across the U.S.
Congress has a chance to clarify the legality of intoxicating hemp products by amending the next U.S. Farm Bill, delayed from last year. Summaries of congressional agriculture policy so far do not address the subject, and a new Farm Bill likely will not emerge until 2025. That leaves states to protect consumers from the unregulated products.
Developments state-by-state
Virginia: Hemp businesses challenge restrictions in court
A federal appeals court last week heard arguments against state restrictions in a 2023 Virginia law that banned intoxicating hemp products. The core issue revolves around states’ rights to regulate hemp products beyond the federal definition. Virginia argues the 2018 Farm Bill does not prevent states from enacting stricter regulations, particularly when public health is at stake. Virginia hemp business say they have seen a 90% revenue drop since the ban took effect. A judge on appeals court questioned the argument of irreparable harm, suggesting that any regulation of illegal activity would cause such consequences. The three-judge panel hearing the case, appointed by presidents of both parties, offered no immediate indication of their ultimate decision.
Illinois: Lawmakers propose regulations as market races ahead
Illinois Democrats are pushing for regulations that would limit sales of intoxicating hemp products to customers 21 and older, and ban treats and packaging aimed at children. Their proposal would also establish licensing and testing requirements, and set up a taxation regime they say could bring in $1.5 billion annually for the state. Sponsors of a bill that would include those regulations hope to pass it before the end of the spring legislative session. Marijuana interests are backing a rule that would impose a $10,000 fine on businesses caught selling delta-8 or other intoxicating hemp products.
Indiana: Consumers at risk as legislators dither over policy
After the state’s top attorney opined that intoxicating hemp is illicit, a producer group filed a federal lawsuit, citing raids and other repercussions that have harmed their businesses. The stakeholders were dealt a blow in late March when the judge in the case denied their request for a preliminary injunction. Indiana’s estimated at $1.8 billion unregulated market for intoxicating hemp remains in limbo as lawmakers clash over plans for an outright ban vs. legislation that would carry tight regulations. The Indiana State Police (ISP) say state law classifies all THC types — both naturally occurring and synthetic — as Schedule I controlled substances. Several attempts to regulate or ban the substances have failed in the state legislature, where Republicans control both chambers but disagree on the approach.
Louisiana: Senate bill calling for ban passes key committee
A Senate bill that would shut down the state’s rapidly growing market for intoxicating hemp products has passed a key committee and now heads to the House of Representatives for a vote. The bill, sponsored by State Sen. Thomas Pressly, seeks a complete ban, while a proposal in the House would allow sales to continue with stricter regulations, including increased age restrictions, packaging requirements, and mandatory measuring devices for extracts.
Texas: Lieutenant governor, agriculture commissioner urge ban
Lieutenant Gov. Dan Patrick has requested the Texas Senate revisit a decision that allowed the sale of products containing intoxicating hemp compounds in 2019, calling for an outright ban on the products. Critics say the lack of comprehensive regulations has led to a “hot mess” with unclear legalities and a proliferation of “high”-producing cannabinoids hitting the market, confusing consumers about what’s legal. Texas Agriculture Commissioner Sid Miller supports the proposed ban
Connecticut: Products redefined, ordered out of convenience stores
Gov. Ned Lamont has signed legislation that redefines “high-THC hemp products” and bans the sale of products containing intoxicating hemp substances at gas stations and convenience stores. The law also strengthens enforcement capabilities for both municipalities and the state Department of Consumer Protection (DCP). The law received nearly unanimous support in the state legislature.
