Skirmishes over CBD and Intoxicating Hemp Products Spark Debates Across U.S.
The lack of rules for CBD and intoxicating hemp products continues to roil the industry, and sharp debate over policy is expected to continue until late this year following delay of the 2023 Farm Bill.
Legislative Initiatives and Regulatory Updates
The final quarter of 2023 saw a flurry of legislative initiatives, regulatory updates and court cases as state and local officials across the country work to reign in the synthetically made, hemp-derived cannabinoids that produce a “high,” and which are not regulated by the Food & Drug Administration (FDA).
In the most recent development, Ohio Gov. Mike DeWine this week reaffirmed that he wants to see legislators move quickly to ban sales of the intoxicating hemp products, lamenting their wide availability in common retail outlets, which he said should be made illegal. DeWine said neither his office nor the police have laws under which they can crack down on the products.
Running Wild
The products, such as delta-8 THC, HHC, THC-P and THC-O, have proliferated in common retail outlets throughout the country, where they are often marketed to youth in packaging that mimics well-known brands of snacks and candy. Also, many producers and sellers have received warnings from the FDA regarding the safety of their products. FDA said it has received reports of serious adverse events from consumers who suffered “hallucinations, vomiting, tremors, anxiety, dizziness, confusion, and loss of consciousness.” At least one child’s death in Virginia was attributed to delta-8 consumption.
The U.S. Drug Enforcement Administration considers the intoxicating hemp products to be federally illegal.
Some states continue to allow the products under a strict interpretation of federal law which legalized industrial hemp and its downstream derivatives. But other court rulings over the past two years have held that legalization of hemp in the 2018 Farm Bill never intended to allow intoxicating psychoactive products, which are made by manipulating hemp-derived CBD in the lab.
‘Hole to Plug’
“They are buying it in gas stations around the state of Ohio. This is a hole that we have to plug,” Ohio’s DeWine told WLWT TV, Cincinnati.
“We have to make this illegal,” DeWine added. “We’re seeing kids get into cars under the influence of this stuff. And there’s no real regulation of it all. We’ve asked the legislature, and I’m asking them, again, give us the authority to stop this.”
Developments State-By-State
Alaska
A ban on intoxicating products derived from hemp remains in effect after federal judge last week rejected a bid by a group of hemp stakeholders who had hoped to set aside enforcement of the policy.
Arkansas
A U.S. District Court in Little Rock ruled in October that a state law that banned delta-8 is in conflict with the 2018 U.S. Farm Bill, which removed hemp from the federal schedule of controlled substances.
California
Late last year, a group of California cannabis companies filed suit against 10 competitors that sell hemp-derived delta-8 THC products, referencing a state ban on such products.
Georgia
The Georgia Court of Appeals in November found that hemp-derived delta-8 THC and delta-10 THC are not controlled substances under state law.
Kentucky
In November, a committee of Kentucky’s General Assembly approved emergency rules to regulate delta-8 THC and other intoxicating hemp-derived cannabinoid products.
In Maryland
A judge from the Circuit Court temporarily suspended the enforcement of a provision in the state’s cannabis law in November. The judge argued that the law’s restrictions violated Maryland’s Constitution’s equal protection and antimonopoly clauses. The law compelled hemp and CBD stores to cease selling delta-8 and any other intoxicating hemp product containing THC, restricting that business to marijuana sellers.
In Missouri
State lawmakers recently announced their intention to redraft legislation that would prohibit intoxicating hemp products in the state, citing ongoing safety risks due to their widespread availability.
In New York
In November, the New York Supreme Court issued a preliminary injunction against emergency measures that abruptly halted the sale of THC-infused hemp-derived products in August.
In Oklahoma
The Oklahoma Medical Marijuana Authority (OMMA) announced in November that it plans to request state legislators for the power to regulate hemp-derived products.
In Tennessee
New state rules passed in December made the Tennessee Department of Agriculture (TDA) responsible for regulating the hemp and marijuana industries in the state. The rules focus on cannabinoid profiles in raw flower products, establishing new THC standards for THCA and CBD flowers.
In Texas
The state’s Third Court of Appeals overturned a ban on delta-8 and other THC isomers that the State Department of Health Services (DSHS) had designated as Schedule 1 controlled substances. The court stated that the ban conflicts with the 2018 U.S. Agricultural Act. The controversy over delta-8 in Texas has been ongoing since at least 2021.
In Virginia
A federal judge in October upheld rules imposing hefty fines on Virginia businesses that continue to sell delta-8 and any other product exceeding total limits for all natural and synthetic forms of THC. A group of stakeholders brought the case. The rules, which remain in effect, set strict limits on total THC levels in hemp food products like gummies and other “candies.” The court ruled that the state had not exceeded its authority to regulate hemp in a way that conflicts with federal law or interferes with interstate commerce and demonstrated that delta-8 THC poses a credible threat to public health.
In Wyoming
Lawmakers continue to work on a bill that would prohibit the addition of “synthetic substances” to hemp and would ban hemp products from containing more than 0.3% of any type of THC by dry weight, including delta-8 THC and delta-10 THC. The bill defines “synthetic substances” as “any synthetic THC, synthetic cannabinoid, or any other psychoactive drug or substance.” A draft of the bill was approved by a key legislative committee in November, but lawmakers stated at that time that changes are needed for it to be approved in both chambers of the legislature. The state already has a law prohibiting delta-8 and delta-10 THC products, but a State Crime Lab expert testified that there is no way to differentiate between synthetic and natural delta-8 compounds.
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