Cliffs Without Fences and Fences Without Cliffs: Exploring the Emerging Conflicts Between Quasi-Legal Intoxicating Hemp And Regulated State-Legal Cannabis
I. Marijuana, Intoxicating Hemp, and Fences Where There Are No Cliffs[2]
The Agriculture Improvement Act of 2018 (the “Farm Act”) legalized and regulated the production of hemp as an agricultural commodity.[3] It also inadvertently legalized a plethora of other, previously-ignored psychoactive cannabinoids (molecular compounds) that get you “high.” Sales of these alternate cannabinoids (the “Intoxicating Hemp Derivatives”) have generated billions of dollars in revenue for various companies, including through business-to-consumer sales using the United States Postal Service and social media direct marketing.[4] One company has made so much money that it now sponsors a NASCAR team.[5] These federally “legal hemp” companies claim exemption from Tax Code Section 280E and generally operated free from significant state regulation and licensing fees. Moreover, based upon the FDA’s recent refusal to regulate cannabidiol (“CBD”)[6] and, by implication, Intoxicating Hemp Derivatives, these products are not subject to any specific federal safety requirements or oversight. Certain state-legal marijuana companies are redirecting their business models seeking to “join,” rather than “beat,” the Farm Act’s newest creation.
But federal law is not static. This year, Congress is working on amendments to the Farm Act. And with the DEA recommending reclassifying marijuana from Schedule I to Schedule III, which could occur in 2024, the most important question in the decades-long war for marijuana legalization is not how rescheduling will impact the industry.[7] It is instead whether “getting high” from the cannabis plant is already federally legal, and will remain so. If the answer is “yes,” then unencumbered and substantially more profitable Intoxicating Hemp Derivatives are likely to eclipse regulated marijuana markets and deny traditional marijuana businesses the spoils of re-scheduling (or any later de-scheduling). Did Mitch McConnell—marijuana’s long-time adversary—and Donald Trump accidentally conspire to legalize cannabinoid intoxication in this way?
When the National Commission on Marihuana and Drug Abuse (the “Shafer Commission”), appointed by President Richard Nixon, concluded in 1972 that marijuana was not a major threat to public health and urged against criminal prohibition, it invoked a poignant metaphor regarding the role of the law in effective social welfare.[8] The Shafer Commission noted that laws targeting social welfare exist to keep the public within the bounds of safety and away from areas that are demonstrably dangerous; the laws establish fences at the edges of the cliffs to keep the unwary from toppling down.[9] Where these laws falter is where they set up fences where no cliff exists, because there will inevitably be those that notice the safety on the other side, jump those fences, and proclaim, “No cliffs! See, no cliffs!”[10] Others are then prompted to ignore the other fences and fall off the real cliffs. The Shafer Commission concluded that “it’s just as dangerous to set up fences without any cliffs as not to have fences where there are cliffs.”[11]
At the federal level, there have long been barbed wire fences surrounding marijuana. As states have continued to legalize marijuana, they have cautiously begun tearing down these fences, replacing them with signs, rules, and regulations. There is no fence, however, separating the public from Intoxicating Hemp Derivatives.[12] To maintain both the safety and the trust of the public, it is time for legislatures to change how they structure the fences surrounding marijuana and Intoxicating Hemp Derivatives.
In an attempt to do just that, members of the House Committee of Agriculture recently approved an amendment to the Farm Act that would revise the federal definition of hemp to exclude cannabinoids that “are not capable of being naturally produced” by the hemp plant or are the result of chemical synthesis.[13] This revision would result in a federal ban on many Intoxicating Hemp Derivatives, which would both obviate the need for the state interventions further described herein and also reduce the regulatory hurdles burdening those hemp farmers that are not engaged in the production of Intoxicating Hemp Derivatives.[14]
II. How Hemp Legalization Brought About the Rise of Intoxicating Hemp Derivatives
The emergence of Intoxicating Hemp Derivatives was occasioned by the Farm Act’s standard for distinguishing federally legal hemp from federally illegal marijuana, although both are from the cannabis plant.[15] The Farm Act defines hemp as “the plant Cannabis sativa L. and any part of that plant […] with a delta-9 tetrahydrocannabinol concentration of not more than 0.3% on a dry weight basis.”[16] Delta-9 tetrahydrocannabinol (“THC”) is the cannabinoid predominantly responsible for the psychoactive effects of marijuana that people have been enjoying for thousands of years. The above test (the “Dry Weight Test”) therefore had a logical provenance—distinguishing federally legal hemp, which would not produce intoxicating effects, from federally illegal marijuana, which would. But the line is not quite that clear, and the Dry Weight Test has led to anything but a clear conclusion. Other cannabinoids, including delta-8 THC and delta-10 THC, naturally occur in cannabis plants (albeit in lesser concentrations) and have psychoactive effects similar to those produced by delta-9 THC.[17] Before 2018, however, there was virtually no reason for cultivators, chemists, or businesspeople to harvest, distill, synthesize, explore, or sell these then-prohibited cannabinoid analogs, several of which differ from delta-9 THC only in the location of a single carbon bond.
The Farm Act provided a legal basis and an economic incentive to distinguish intoxicating cannabinoids, and the debate continues as to whether that was the intended result.[18] It quickly became clear that heavy, dense edible products like gelatin gummies could be dosed with high quantities of psychoactive cannabinoids (including, arguably, delta-9 THC) while still qualifying as “hemp” under the Dry Weight Test.[19] The floodgates were open to a deluge of these Intoxicating Hemp Derivatives—products that can look like marijuana, smell like marijuana, and act like marijuana, but which face few to none of the legal and regulatory challenges of marijuana. The chart below illustrates how these similar, yet legally distinct substances exist on a legality continuum, with only state-licensed marijuana being subject to the regulations and other business challenges like Tax Code Section 280E.[20]
Figure 1. The Cannabis Legality Continuum
From a legal standpoint, delta-9 THC appears to be the only “intoxicating cannabinoid,” even though the science does not bear that out.[21] Yet as the above chart demonstrates, these substances exist in a legally complicated matrix of overlapping gray areas that is belied by the simplistic distinction between delta-9 THC and “hemp.” What if delta-8 THC is chemically converted from CBD? This is very easy for anyone with a general chemistry background and is the most economically effective way to manufacture Intoxicating Hemp Derivatives products.[22] How about delta-9 THC converted from CBD? Is that “derived” from hemp? What about a 12-ounce beverage with 100 milligrams of delta-9 THC synthesized from CBD which satisfies the Dry Weight Test?[23] What if that delta-9 THC was distilled directly from hemp plants rather than converted from CBD? What if it was distilled from marijuana? Where the marijuana industry faces an array of regulatory rules and challenges, Intoxicating Hemp Derivatives are able to exploit an ever-broadening expanse of legal gray area. And consumers—faced with a rapidly expanding array of “hemp-derived” THC products being sold legally at gas stations, liquor stores, and online—are none the wiser as to what they are actually consuming, or why they can suddenly buy it just about anywhere.
III. State Developments Amidst Federal Silence
All of the Intoxicating Hemp Derivatives products noted above are currently available in interstate commerce. Aside from one announcement by the DEA,[24] no one at the federal level has been saying much about these products. In the absence of meaningful federal direction, some states have begun to crack down on Intoxicating Hemp Derivatives products with varying degrees of success, with litigation of all sorts becoming an integral component of the legal landscape around these products.[25]
A. Litigation Impacting Some State Measures to Redefine Hemp
A number of states that have sought to restrict or regulate Intoxicating Hemp Derivatives have encountered legal challenges. For instance, Maryland legislators passed a law redefining THC as any form of THC—including delta-8 and delta-10 THC—whether derived from cannabis or hemp, and any other cannabinoid other than CBD.[26] Similarly, Arkansas legislators amended the state-definition of hemp to be more restrictive than the 0.3% threshold established by the Farm Act.[27] Hemp industry advocates in both states secured preliminary injunctions of those state laws, although the cases remain ongoing.[28] Likewise, the Georgia Court of Appeals recently ruled that Delta-8 and Delta-10 THC are not controlled substances and are therefore legal to sell, possess, and consume in Georgia, despite the continued illegality of Delta-9 THC in the state.[29]
B. States Finding Paths to Regulate Hemp Like Marijuana
Not all legal challenges to state-imposed bans or regulations of Intoxicating Hemp Derivatives have been successful. A federal judge upheld an Alaskan law that subjects all hemp-derived products with any concentration of THC to Alaska’s stringent cannabis regulations despite cries from the state’s hemp industry that the new law is “a kill shot from the cannabis industry to the hemp industry.”[30] A Virginia judge has also upheld a law targeting delta-8 THC and other THC isomers, which has led to significant fines on hemp retailers.[31]
Connecticut has evaded legal challenge to its regulatory efforts thus far by letting hemp be hemp (per the Farm Act), but requiring hemp businesses to obtain marijuana operating licenses and comply with all related regulatory procedures.[32] Washington has also brought federally legal hemp products under the purview of its cannabis regulatory scheme,[33] and Missouri lawmakers are attempting to do the same, pending challenges from the state hemp industry.[34] The Missouri Administrative Hearing Commission is currently considering whether Missouri regulators have the authority to prohibit state-licensed cannabis companies from infusing their products with “hemp-derived chemically modified ‘converted’ cannabinoids.”[35] Colorado has already banned the sale of Intoxicating Hemp Derivatives within the state, though it has carved out a safe harbor for their manufacture for sale in other states.[36] The Florida legislature has also recently approved new regulations that effectively ban delta-8 THC, delta-10 THC, and other THC isomers that have found their way to market.[37]
Michigan saw more than $3 billion dollars in regulated marijuana sales in 2023 and has the most profitable cannabis market in the country, per capita.[38] In 2021, Michigan passed legislation broadening its definition of THC to include naturally and artificially derived THC, THC isomers like delta-8 THC, and tetrahydrocannabinolic acid (“THCA”).[39] The strength of its traditional marijuana market may be the reason Michigan has yet to face a legal challenge from the hemp industry.
C. Class Action in the Intoxicating Hemp Industry
Amid the confusion over the legal status of various products, the plaintiff’s class action bar has identified an opportunity. THCA is the non-psychoactive precursor of delta-9 THC and converts into delta-9 THC through decarboxylation—a process that occurs, notably, when THCA is heated.[40] As with delta-8 THC and other Intoxicating Hemp Derivatives, THCA is arguably federally legal because it is not delta-9 THC, even though it converts into delta-9 THC upon heating—including when you smoke it.[41] California-based brand “Cookies,” the most prominent cannabis lifestyle brand in the world, currently sells THCA flower, concentrate, and edibles direct to consumers nationwide through a digital platform.[42] Cookies was recently named in a federal racketeering class action brought by consumers alleging that Cookies, fellow cannabis brand STIIIZY, and twelve other co-conspirators intentionally mislabeled, marketed, and sold delta-9 THC products as federally-legal Intoxicating Hemp Derivatives.[43] The lawsuit estimates the amount of product fraud at over $50 million, and since RICO statutes provide for treble damages, if found liable the defendants may have to pay out over $150 million.[44] The results of this litigation could, in various ways, remake the landscape for any number of hemp-based products.
IV. What Is Next for the 2024 Farm Bill?
A. Potential Changes to the Status and Regulation of Hemp
Regardless of the federal government’s intent, the Farm Act has unleashed Intoxicating Hemp Derivatives, and state governments are scrambling to control the otherwise unchecked proliferation of these products that produce a high like marijuana but are subject to virtually no regulation.[45] Against that backdrop, the Farm Act expired in September 30, 2023, and Congress has yet to release a draft of the proposed updated legislation.[46] On November 16, 2023, the Biden Administration extended the Farm Act through September 30, 2024, to allow additional time for those amendments (the anticipated “2024 Farm Bill”).[47]
The content of the 2024 Farm Bill will drastically impact the state of play for Intoxicating Hemp Derivatives in one direction or the other (i.e., attempted retraction or express validation). That outcome has significant implications for state-sponsored marijuana markets and could re-direct many millions in equity investment that was otherwise expected to flow into traditional marijuana industries given anticipated re-scheduling. The push-and-pull of the political process has drawn a crowd of spectators, including: marijuana companies (which exist in an unstable state of federal illegality and state-level regulation), operators of Intoxicating Hemp Derivatives companies (basking in a mostly unregulated free-for-all), “true” hemp farmers (looking for a viable, profitable, sustainable cash crop), and pharmaceutical companies with a vested interest in hemp and FDA and DEA oversight of Intoxicating Hemp Derivatives.
B. Tracking the Major Players in the Lead-Up to the 2024 Farm Bill
Certain hemp industry advocates are pushing to increase the Dry Weight Test’s allowable delta-9 THC concentration from 0.3% to 1.0%, while also employing a “total THC” standard that would include Intoxicating Hemp Derivatives.[48] The fight over the Dry Weight Test and its myriad legal and regulatory implications has drawn a wide array of players, which tend to fall into three buckets.
1. Hemp Industry Advocates
There are two sets of hemp industry advocates—both the “true” hemp farmers cultivating for CBD, fibers, and textiles, and the opportunistic operators seeking to capitalize on the legal gray area surrounding Intoxicating Hemp Derivatives. Predictably, the farmers tend to be more publicly vocal about their wishes and intentions. In that regard, the National Association of State Departments of Agriculture (“NASDA”) has proposed that Congress increase the Dry Weight Test threshold from 0.3% to 1.0%.[49] The U.S. Hemp Roundtable (the “USHR”) advocates a more focused change, urging legislators to raise the permissible THC concentration to 1.0% for hemp crops, but presumably not consumer packaged goods.[50] Both groups are lobbying to protect farmers from dreaded “hot hemp,” where factors outside farmers’ control (e.g., climate and soil conditions and testing errors) compel the destruction of crops that only minimally exceed the current Dry Weight Test threshold.[51] Interestingly, the USHR submitted written testimony arguing that the FDA’s refusal to regulate CBD as a dietary supplement or food additive has strangled the potential of the CBD market, forcing many hemp operators to turn their attention to Intoxicating Hemp Derivatives as a means of economic survival.[52]
2. State Regulators and the State-Legal Marijuana Contingent
State regulators and advocates of state-legalized marijuana industries generally seek to rid the market of Intoxicating Hemp Derivatives that pose a safety risk or cut-in on those regulated markets with arguably unfair competitive advantages. In March, twenty state Attorneys General urged Congress to address “intoxicating hemp products” in the 2024 Farm Bill.[53] The letter to Congress highlighted the danger that these unregulated products pose: “The reality is that [the Farm Act] has unleashed on our states a flood of products that are nothing less than a more potent form of cannabis, often in candy form that is made attractive to youth and children—with staggering levels of potency, no regulation, no oversight, and a limited capability for our offices to rein them in.”[54]
The Cannabis Regulators Association (“CANNRA”) is also advocating for strict regulation of Intoxicating Hemp Derivatives. In written testimony submitted to Congress in 2023, CANNRA’s Executive Director Gillian Schauer explained that products containing Intoxicating Hemp Derivatives often have THC levels far above what is permitted in state-compliant markets.[55] One product available in Minnesota contains 2500 milligrams of hemp-derived THC, while state-regulated markets often cap the total permissible THC per package at 100 milligrams.[56] Schauer emphasized that these Intoxicating Hemp Derivatives have not been studied for human consumption and can pose serious consumer risks due to lack of testing and general understanding, inaccurate labeling, and packaging designed to appeal to children.[57]
Schauer also noted that the unregulated market for intoxicating hemp severely undermines the regulated marijuana market: “When compared to state-regulated marijuana markets, the current Intoxicating Hemp Derivatives market is effectively an alternative unregulated market for intoxicating cannabinoids, with lower barriers to entry and access due to a complete lack of consumer safety and public health regulations.”[58] CANNRA recommends a slew of regulations for Congress to impose on the hemp market that would subject Intoxicating Hemp Derivatives to virtually the same regulations required under state marijuana frameworks.[59] While such a shift would massively benefit state-licensed marijuana operators, Congress is unlikely to agree on one federal framework. The more likely outcome would be that Congress explicitly allows states to regulate Intoxicating Hemp Derivatives as they choose without fear of federal preemption. This potential outcome raises a crucial question: Why has Congress not chosen to grant the states the same autonomy over traditional marijuana?
3. Prohibitionists
Cannabis prohibitionists see Intoxicating Hemp Derivatives as a sneaky extension of the same marijuana that they have been fighting to keep illegal for decades. Smart Approaches to Marijuana (“SAM”), one of the most well-organized and well-connected prohibitionist organizations in the country, has expanded its anti-marijuana campaign to target Intoxicating Hemp Derivatives. Arguing that “just like [delta-9] THC, [Intoxicating Hemp Derivatives] are addictive, intoxicating, and psychoactive,” SAM urged Congress in 2023 to ban the manufacture and sale of Intoxicating Hemp Derivatives entirely.[60] On December 20, 2023, the Executive Vice President of SAM, Luke Niforatos, appeared on Fox News to talk about the alleged dangers of those products, claiming that hemp gummies have been sending thousands of children to hospitals and that a four-year-old in Virginia, as well as several adults, have died after consuming hemp gummies.[61] While SAM has no current press releases about the upcoming 2024 Farm Bill, it is likely that the group will mount a significant campaign in favor of curtailing or removing protections for Intoxicating Hemp Derivatives.
V. Conclusion
The draft of the 2024 Farm Bill approved by the House Agriculture Committee has a long way to go, but the re-definition of “hemp” would upend the multi-billion dollar Intoxicating Hemp Derivatives gray market that sprang into being in the wake of the 2018 Farm Act.[62] The advancement of the 2024 Farm Bill will be a lengthy process, but given the expiration date of the current Farm Act, there is likely to be some type of resolution, whether an agreed-upon bill or yet another stopgap measure, by the end of September.
Though the lines are drawn and the positions firmly staked, uncertainty reigns in the run-up to the 2024 Farm Bill—assuming a 2024 Farm Bill can be agreed upon at all. With a significant stalemate in both chambers over the total budget for the 2024 Farm Bill, political forces could bend in either direction.[63] Certain agricultural economists are of the opinion that the debate and deadlock over the 2024 Farm Bill will continue well into the 2024 election.[64] Some House Republicans believe that House Democrats will attempt to punt the amendments out to 2025, when Democrats have a chance to retake the majority.[65] Uncertainty is a familiar concept to the hemp industry, which has existed at the edges (and sometimes in the depths) of a legal and regulatory gray area in the years since the Farm Act was passed. It is unclear whether and how the 2024 Farm Bill will address the confusion, loopholes, and murkiness that its predecessor engendered, or whether it will open still more legal liminal spaces in which the cannabis plant, however defined, might take root.
But the pressure is on: the Attorneys General who petitioned Congress in March represented states ranging from Kansas, which has some of the strictest marijuana laws in the country, to California, which has some of the least restrictive. The consensus among these disparate states highlights that it has nothing to do with marijuana, or with getting high, and everything to do with setting up a fence by an unguarded cliff.
[1] Each of the authors has counseled or currently serves as counsel to clients in both the hemp and state-legal cannabis industries. Benton Bodamer and Benjamin Sobczak each hold investments and/or operational roles in state-legal cannabis entities in Ohio (Bodamer), Massachusetts (Bodamer), and Michigan (Sobczak).
[2] This article was first published by the Drug Enforcement and Policy Center for Ohio State University’s Moritz College of Law.
[3] Agriculture Improvement Act of 2018, Pub. L. No. 115-334.
[4] Dario Sabaghi, Delta-8 THC Generated $2 Billion in Revenue in Two Years, Report Finds, Forbes (Jan. 16, 2023), https://www.forbes.com/sites/dariosabaghi/2023/01/16/delta-8-thc-generated-2-billion-in-revenue-in-2-years-report-finds/?sh=28c308f24a62.
[5] 3CHI Racing News, https://www.3chi.com/racing/ (last visited Mar. 10, 2024).
[6] FDA Statement, Office of the Commissioner, FDA Concludes That Existing Regulatory Frameworks for Foods and Supplements Are Not Appropriate for Cannabidiol, Will Work With Congress on a New Way Forward (Jan. 26, 2023), https://www.fda.gov/news-events/press-announcements/fda-concludes-existing-regulatory-frameworks-foods-and-supplements-are-not-appropriate-cannabidiol.
[7] Zeke Miller et al., US Poised to Ease Restrictions on Marijuana in Historic Shift, But It’ll Remain Controlled Substance, Associated Press (Apr. 30, 2024), https://apnews.com/article/marijuana-biden-dea-criminal-justice-pot-f833a8dae6ceb31a8658a5d65832a3b.
[8] Nat’l Comm’n on Marihuana and Drug Abuse, NJC 164684, Marihuana: A Signal of Misunderstanding (1972, available at: https://archive.org/details/marihuanasignalo00unit/ mode/2up.
[9] Id.
[10] Id.
[11] Id.
[12] 5 Things to Know About Delta-8 Tetrahydrocannabinol – Delta-8 THC, Food and Drug Admin.: Consumer Update (May 4, 2022), https://www.fda.gov/consumers/consumer-updates/5-things-know-about-delta-8-tetrahydrocannabinol-delta-8-thc; Jennifer M. Whitehill et al, The Public Health Challenge of D8-THC and Derived Psychoactive Cannabis Products, 331(10) J. American Med. Ass’n 834, 102024;331(10):834–836. doi:10.1001/jama.2024.0801.
[13] H.R. 8467, 118th Cong., 2nd Sess. (2024); Dario Sabaghi, House Committee Approves Farm Bill Amendment to Ban Delta-8 THC, Forbes (May 24, 2024), https://www.forbes.com/sites/dariosabaghi/2024/05/24/house-committee-approves-farm-bill-amendment-to-ban-delta-8-thc/?sh=14d65939c4a2/.
[14] Sabagahi, supra note 13.
[15] 7 U.S.C. § 1639o(1).
[16] 7 U.S.C. § 1639o(1) (emphasis added).
[17] Id.; see also Rob Mentzer, A Loophole in Federal Marijuana Law Has Led to the Creation of a New THC Product, NPR: All Things Considered (Jan. 4, 2022), https://www.npr.org/2022/01/04/1070338052/a-loophole-in-federal-marijuana-law-has-led-to-the-creation-of-new-thc-product.
[18] Matt Richtel, This Drug Gets You High, and Is Legal (Maybe) Across the Country, N.Y. Times (Feb. 27, 2021), https://www.nytimes.com/2021/02/27/health/marijuana-hemp-delta-8-thc.html; Eric C. Leas et al., Public Interest in Δ8-Tetrahydrocannabinol (Delta-8-THC) Increased in U.S. States that Restricted Δ9-Tetrahydrocannabinol (delta-9-THC) Use, 101 Int’l J. Drug Pol’y, Mar. 2022.
[19] Hemp in the Modern World: The Yearslong Wait for FDA Action: Hearing Before the H. Comm. On Oversight and Accountability, 118th Cong. 1–2 (2023) (written testimony of Kevin Sabet, President and CEO, Smart Approaches to Marijuana) https://www.congress.gov/118/meeting/house/116289/documents/HHRG-118-GO27-20230727-SD005.pdf.
[20] Schedule III reclassification of marijuana will remove the burden of Section 280E, which applies only to Schedule I or II substances.
[21] AK Futures LLC v. Boyd Street Distro, LLC, 35 F.4th 682 (9th Cir. 2022) (holding that the delta-8 THC in AK Futures’ e-cigarette liquid meets the statutory definition of hemp and is therefore lawful under the Farm Act).
[22] Werner Bernhard et al., Delta-8-Tetrahydrocannabinol, an Emerging NPS and Other Structurally Related Cannabinoids, 34 (3) Toxicologie Analytique et Clinique S174 (2022) (stating that “the conversion [of CBD to delta-8 THC] isn’t alchemy or magic; in fact, it’s much less complicated than one might expect. The basic process for converting CBD to delta-8 THC simply is: ‘CBD + acid + time = delta-8 THC.’”).
[23] Beverages are a misapplication of “dry weight,” as they are not evaporated or cured like hemp flower. It is obvious that the Dry Weight Test did not contemplate products, only flower and hemp biomass.
[24] In February of 2023, the DEA clarified that it considers any “hemp-derived” “novel cannabinoids” that do not exist in the hemp plant naturally—such as THC acetate ester, commonly referred to on the market as THC-O—to be illegal. Chris Roberts, THC-O Is Not Hemp and Is Illegal Under Farm Bill, DEA Says, MJBiz Daily (Feb. 15, 2023) https://mjbizdaily.com/thc-o-is-not-hemp-and-is-illegal-under-farm-bill-dea-says/#:~:text=Be%20at%20the%20forefront%20of%20cannabis%20and%20psychedelics%20science%20and%20innovation.
[25] David Ovalle & Fenit Nirappil, CBD, Delta-8, THCA: Texas Hemp Shop Raid Highlights Legal, Safety Issues, The Washington Post: Health (Nov. 1, 2023), https://www.washingtonpost.com/health/2023/11/01/hemp-is-legal-what-about-cbd-delta-8-thc/.
[26] Md. S.B. 516; Md. Code Ann. § 36–1102(a)(3); Melissa Schiller, Maryland Supreme Court Declines to Hear Case on Hemp-Derived THC Sales, Keeping Products on Store Shelves, Cannabis Business Times (Nov. 30, 2023), https://www.cannabisbusinesstimes.com/news/maryland-supreme-court-declines-to-hear-case-on-hemp-derived-thc-sales/#:~:text=Maryland%20officials%20have%20argued%20that,the%20tightly%20regulated%20cannabis%20market.
[27] Ark. S.B. 358.
[28] Maryland Hemp Coalition, Inc. v. Governor Wes Moore, No. C-21-CV-23-000348 (Cir. Ct. Md. filed July 24, 2023). Members of the state’s hemp industry claimed that the law bestowed an “unjust monopoly” on cannabis license-holders in Maryland. The court agreed with this assessment and suspended enforcement of the problematic portion of the amended law, thereby allowing hemp-derived products to remain on the shelves, and the Maryland Supreme Court has declined to hear the case. The state’s appeal will proceed with the Maryland Appellate Court. Bio Gen, LLC v. Sarah Huckabee Sanders, 2023 WL 5804185 (E.D. Ark. filed Sept. 7, 2023); Michael Buckner, Arkansas Law that Bans Some Products Containing THC Blocked by Federal Judge, THV11 (Sept. 8, 2023), https://www.thv11.com/article/news/local/federal-judge-arkansas-delta-8-thc-ban/91-cf9e67e9-6bf8-4fc7-9c91-19b83525fd59. The Arkansas bill also attempted to criminalize hemp-derived products without an exception for interstate commerce and contained terms that “would confuse even an exceptionally intelligent reader.” Finding that the plaintiffs were likely to succeed on their claims that the bill was federally preempted and void for vagueness, the judge blocked enforcement of the state ban. This temporary victory for the Arkansas hemp industry means that hemp and hemp-derived products are not subject to any further restrictions in Arkansas at this time, but that status may change when the case goes to trial later this year.
[29] Elements Distribution v. Georgia, 369 Ga.App. 844 (2023). Notably, the Court clarified that its decision did not address the “unsettled” question of whether Delta-8 THC or Delta-10 THC that has been synthetically derived from the cannabis plant, rather than the hemp plant, would be legal under Georgia law. Id. at n.2 (2023).
[30] Order Adopting Changes to Regulations of Department of Natural Resources (Sept. 23, 2023); Alaska Industrial Hemp Association v. Alaska Department of Natural Resources, No. 3:23-cv-002530SLG (D. Alaska filed Nov. 2, 2023); James Brooks, Hemp Growers Sue Alaska Agriculture Officials in Attempt to Keep Hemp Products Legal, Alaska Beacon (Nov. 7, 2023), https://alaskabeacon.com/2023/11/07/hemp-growers-sue-alaska-agriculture-officials-in-attempt-to-keep-hemp-products-legal/; Alaska Industrial Hemp Association v. Alaska Department of Natural Resources, 2023 WL 8935020 (Dec. 27, 2023). The Alaska Industrial Hemp Association and a coalition of hemp growers and manufacturers claimed that the new limits on intoxicating hemp products are unconstitutional and that the purpose of the amendments is to protect the state’s cannabis industry at the expense of the hemp industry. A federal judge rejected the bid to bar enforcement of the policy, finding that there was not sufficient evidence to demonstrate that the law would either impose an excessive burden on interstate commerce or constitute an unconstitutional regulatory taking. The judge was also unpersuaded by the argument that Alaska’s amendments to its industrial hemp regulations were preempted by the Farm Act, finding that “state laws prohibiting the interstate transportation of hemp as defined by the federal statute are expressly preempted, but states may otherwise stringently regulate hemp production.”
[31] Va. S.B. 903; Va. Code § 3.2–4112; Northern Virginia Hemp and Agriculture LLC, No. 1:2023cv01177 (E.D. Va. 2023); Graham Moomaw, Hemp Retailers Start Seeing Big Fines as Virginia’s Tougher THC Law Takes Effect, Virginia Mercury (Aug. 1, 2023), https://www.virginiamercury.com/2023/08/01/hemp-retailers-start-seeing-big-fines-as-virginias-tougher-thc-law-takes-effect/ (stating that the Virginia Department of Agriculture and Consumer Services had, at time of print, sent five non-compliance letters assessing penalties ranging from $13,000 to $97,500).
[32] Conn. H.B. 6700; Conn. Gen. Stat. § 22–61l(7) (“‘Hemp’ has the same meaning as provided in the federal act.”).
[33] Wash. S.B. 5367 (to be codified at Wash. Rev. Code 69.50.101(h)(1)).
[34] Mo. S.B. 984 (2024); Rebecca Rivas, Missouri Lawmakers Renew Push to Regulate “Delta-8 THC” Hemp Products, Missouri Independent (Dec. 28, 2023), https://www.thepitchkc.com/missouri-lawmakers-renew-push-to-regulate-delta-8-thc-hemp-products/.
[35] Rebecca Rivas, Company Behind Missouri Marijuana Recall Poses Legal Challenge to State’s Regulations, Missouri Independent (Dec. 18, 2023), https://missouriindependent.com/2024/03/07/three-day-hearing-reveals-behind-the-scenes-details-of-missouri-marijuana-recall/; Rebecca Rivas, Three-Day Hearing Reveals Behind-the-Scenes Details of Missouri Marijuana Recall, Missouri Independent (Mar. 7, 2024), https://missouriindependent.com/2024/03/07/three-day-hearing-reveals-behind-the-scenes-details-of-missouri-marijuana-recall/.
[36] Kim Stuck, Colorado’s New Hemp Regulations: Safe Harbor Registrants, Cannabis Sci. Tech. (Apr. 1, 2024), https://www.cannabissciencetech.com/view/colorado-s-new-hemp-regulations-safe-harbor-registrants; Co. S.B. 23-271 § 25-5-427; Request for Rulemaking Hearing, from Justin Trubee & Sean Scott, Colorado Division of Environmental Health and Sustainability, to Members of Colorado State Board of Health (Sept. 1, 2023) (on file with author).
[37] Fla. S.B. 1698 (2024); Adam Jackson, Florida Cracks Down on Delta-8, Other Hemp Products, Green Market Report (Mar. 11, 2024), https://www.greenmarketreport.com/florida-cracks-down-delta-8-other-hemp-products/#:~:text=The%20Florida%20Legislature%20approved%20new,awaits%20Gov.%20Ron%20DeSantis’s%20signature.
[38] Tony Lange, Michigan Caps Off $3 Billion Year in Cannabis Sales with Record-Breaking December, Cannabis Bus. Times (Jan. 16, 2024), https://www.cannabisbusinesstimes.com/news/michigan-cannabis-record-sales-3-billion-2023-prices/.
[39] Mich. Comp. L. § 333.27953(aa).
[41] Demystifying the Process: How THCA Transforms into THC, The Green Nursery, https://thegreennursery.com/ the-green -nursery-blog/ demystifying-the-process-how-thca-transforms-into-thc/.
[42] Cookies Creative Productions & Consulting, https://cookies.co/catalog/ (last visited February 16, 2024).
[43] Ledbetter v. Cloud 9 Online Smoke & Vape, LLC, No. 1:24-vc-005380SDG (D. Ga. filed Feb. 6, 2024).
[44] John Schroyer, Georgia $150M Class Action Lawsuit Accuses STIIIZY, Cookies, Others of Selling Marijuana as Hemp, https://www.greenmarketreport.com/georgia-150m-class-action-lawsuit-accuses-stiiizy-cookies-others-of-selling-marijuana-as-hemp/ (Feb. 13, 2024).
[45] In states with state-legal marijuana (whether medical, adult-use, or both), licensed marijuana establishments are required to use “seed-to-sale” systems that track the marijuana life cycle from seed germination to product sales and monitor compliance with state regulations. Federal prohibition of marijuana necessitates these extensive tracking systems. On the flipside, the lack of federal regulation (and the patchwork inadequacy of state regulation) of Intoxicating Hemp Derivatives means that no such tracking is required, and product dangers (e.g., heavy metal and pesticide contamination) run unchecked.
[46] See, e.g., An Examination of the USDA Hemp Production Plan Before the Subcommittee on Biotechnology, Horticulture, and Research, 117th Cong. (2023) (hereinafter 2023 Congressional Hemp Hearing).
[47] Further Continuing Appropriations and Other Extensions Act, Pub. L. No. 118–22, § 102(a).
[48] 2023 Congressional Hemp Hearing (testimony of Dr. Ryan F. Quarles, Commissioner, Kentucky Department of Agriculture) (urging Congress to revise the federal definition of hemp plants to raise the THC threshold from 0.3% to 1.0% and to embrace a “total THC” standard instead of a “delta-9 THC only” standard in order to “establish a threshold which better reflects the material’s true intoxicating potential.”); 2023 Congressional Hemp Hearing (testimony of Dr. Brandy E. Phipps, Assistant Professor of Agricultural and Life Sciences, Central State University) (advocating that hemp breeders be permitted to handle hemp germplasm containing a THC concentration of up to 1.0% to enable the development of “elite varieties” of hemp adapted to grow in specific regions, thereby expanding the grain and fiber hemp industries).
[49] NASDA, 2024 Farm Bill: Priorities for State Departments of Agriculture, Jan. 22, 2024, https://www.nasda.org/wp-content/uploads/2024/01/2024-Farm-Bill-one-pager-FINAL.pdf.
[50] U.S. Hemp Roundtable, THC Levels for Hemp Crops, https://hempsupporter.com/resource/thc-levels-for-hemp-crops/.
[52] Hemp in the Modern World: The Yearslong Wait for FDA Action: Hearing Before the H. Comm. On Oversight and Accountability, 118th Cong. 1–2 (2023) (written testimony of Jonathan Miller, General Counsel of U.S. Hemp Roundtable).
[53] Paul Demko, State Attorneys General Urge Congress to Address Risks Posed by Intoxicating Hemp Products, Politico (Mar. 20, 2024), https://www.politico.com/news/2024/03/20/intoxicating-hemp-products-state-attorneys-general-congress-00147819#:~:text=A%20bipartisan%20group%20of%2020,a%20boon%20for%20struggling%20farmers.
[55] Sabet, supra note 19.
[59] Letter from Gillian L. Schauer, Executive Director, CANNRA, to Kevin McCarthy, Speaker of the House, Hakeem Jeffries, Minority Leader of the House, Chuck Schumer, Majority Leader of the Senate, and Mitch McConnell, Minority Leader of the Senate (Apr. 17, 2023) (on file with author); Tyler Klimas, Executive Director of the Nevada Cannabis Compliance Board; Chris Tholkes, Director of the Minnesota Medical Cannabis Program; Dominique Mendiola, Senior Director of the Colorado Marijuana Enforcement Division; Michele Nakata, Chief of the Hawaii Office of Medical Cannabis Control and Regulation; William Tilburg, Executive Director of the Maryland Medical Cannabis Commission; and Andrew Turnage, Executive Director of the Georgia Access to Medical Cannabis Commission.
[60] Hemp in the Modern World, supra note 19.
[61] Expert Sounds Alarm on Danger of Hemp Products: “A Matter of Life and Death”, Fox News (Dec. 20, 2023), https://www.foxnews.com/video/6343601779112.
[63] Garrett Downs, Farm Bill Debate Goes Sour, Politico, Dec. 18, 2023 https://www.politico.com/newsletters/weekly-agriculture/2023/12/18/farm-bill-debate-goes-sour-00132228.
[64] Chuck Abbott, Farm Bill Debate Will Continue Into “the Meat” of 2024 Election, Successful Farming, Jan. 29, 2024 https://www.agriculture.com/farm-bill-debate-will-continue-into-the-meat-of-2024-election-8551168.
