Hemp’s Hazy Legal Status Challenges Public Health Efforts
November 22, 2024 | Christina Severin
Hemp-derived products with tetrahydrocannabinol (THC) variants like Delta-8, Delta-9, and Delta-10, have gained popularity nationwide, turning up in foods, beverages, and other consumable items. Promising a ‘high’ and/or health benefits, these products may look like popular snack foods but could have misleading or inaccurate labels resulting in accidental ingestion or other complications. Poison centers have responded to more than 1,500 exposures associated with these products this year and nearly 10,000 since 2021. A number of jurisdictions have moved to regulate these products through legislation, rulemaking, and enforcement activity, and in many cases, have ended up defending these actions in court.
Federal Deregulation Creates Market for Intoxicating Hemp-products
Hemp and marijuana both come from Cannabis sativa, which contains cannabinoids like THC and cannabidiol. Hemp contains the psychoactive components of cannabis, including Delta-9 THC and Delta-8 THC at relatively low levels, though higher amounts can be created in a laboratory setting. Currently, marijuana is a Schedule I controlled substance illegal under federal law; hemp was removed from the federal Controlled Substances Act in 2018. That year, the federal Farm Bill made a number of changes to promote hemp production in the United States, including changing the definition of marijuana to exclude hemp and defining hemp as any part the Cannabis sativa plant with a Delta-9 THC concentration of 0.3% or less (dry weight). The Farm Bill also allowed states to regulate hemp production and retained FDA’s authority over hemp-infused products.
Intoxicating hemp-derived products have proliferated in the years since. CDC issued a health advisory warning public health agencies and healthcare professionals about the potential risks of these products, noting a lack of testing and standardization and adverse events associated with unclear or misleading packaging. Outside of accidental ingestion, recent data suggests that more than 10% of high school seniors reported using Delta-8 in the last year.
FDA has warned consumers about the risks food products that contain THC and has worked with the Federal Trade Commission to issue a number of cease and desist letters to manufacturers of these products, highlighting several instances where hemp-derived products look nearly identical to popular snack foods and candy that appeals to children. FDA has also noted that (1) Delta-8 is not an approved food additive, (2) Delta-8 products claiming to treat a condition are considered an unapproved new drug, and (3) it is illegal to sell foods with added THC across state lines.
In 2023, members of Congress asked for input on the impact of the Farm Bill’s deregulation of hemp. More than 20 state attorneys general wrote a letter to Congress in 2024, highlighting the challenges that intoxicating hemp products have caused and the need for state regulation to address the risks to consumers. The Farm Bill was due for reauthorization in 2023 but was extended through September 30, 2024. Proposed legislation would exclude certain intoxicating products from the legal definition of hemp, but it isn’t clear whether this approach, or another reauthorization, will gain traction in the lame duck session or the next Congress.
States Move to Fill the Regulation Vacuum
With uncertainty at the federal level and continued public health risks, states have been regulating intoxicating hemp-derived products. In 2024, at least nine states enacted legislation regarding these products, including Connecticut (HB 5150) Wyoming (SF 32), Minnesota (HB 4757), South Dakota (HB 1125), West Virginia (SB 679), Louisiana (HB 952), and New Jersey (S 3235). South Dakota explicitly prohibits the conversion or modification of industrial hemp into any THC variant, including Delta-8 and Delta-10, and the sale of any resulting products, and New Jersey moved the regulation and sale of these products under the state’s cannabis regulatory agency.
Louisiana restricts sales of all consumable hemp products to adults twenty-one and older and imposes new restrictions on THC amounts and serving sizes. And after signing SB 1676 last year to limit sales of these products to children and impose packaging requirements, permitting standards, and penalties, Florida’s governor vetoed SB 1698 that would have placed additional restrictions on certain intoxicating hemp products in the state, citing an increased burden on small businesses to comply. However, he urged the legislature to revisit the issue next session and focus on quality standards, packaging requirements, and retail limits.
A number of jurisdictions also pursued rulemaking as a way to address intoxicating hemp-derived products. Following the enactment of Georgia SB 494 earlier this year, Georgia’s Department of Agriculture proposed new rules addressing the serving size of consumable hemp products containing Delta-9 THC. Similarly, after Iowa enacted HF 2605 further regulating consumable hemp products earlier this year, the Iowa Department of Health and Human Services issued rules focusing on manufacturer and retail registration, inspection and penalties. Finally, the California Department of Public Health issued emergency rules in September 2024 requiring that food products containing hemp have no detectable THC, limiting package size, and restricting sales to adults over 21.
Legal Challenges and Enforcement Activity
The hemp industry has repeatedly challenged state actions to regulate hemp-derived products with mixed results. In many cases, state actions survived the first phase of legal challenges and remained in effect while litigation continues. For example, judges allowed the laws in Wyoming and South Dakota to take effect while the cases continue, but New Jersey’s legal framework was impacted. Shortly after New Jersey’s governor signed SB 3235 into law, noting in his signing statement the potential for legal challenges to the legislation, a hemp business challenged the law in federal court and succeeded in striking down part of the law that treated out-of-state hemp products differently. However, the provision prohibiting sales to people under 21 years of age remained intact. Litigation arising out of a 2023 Arkansas law (SB 358) restricting intoxicating hemp products is further along. There, a judge put the state law on hold. The state appealed, and argued the case before a federal appeals court in September of this year; a decision remains pending.
Rulemaking actions in Iowa and California also played out in court challenges from the hemp industry but judges have so far sided with both states. California’s rules will remain in effect while litigation continues, and both cases in Iowa have been dismissed.
Missouri has also experienced a flurry of activity in recent months over the regulation of hemp-derived products. In August 2024, the governor issued an executive order directing the health department to embargo foods containing unregulated psychoactive cannabis products, and the state’s alcohol and tobacco agency to adopt regulations prohibiting sales by a facility holding a liquor license. A lawsuit followed, challenging the order as in conflict with state law, and the alcohol and tobacco agency’s emergency rules were rejected by the Secretary of State. The health department clarified its enforcement approach of the executive order in September 2024, noting that it would prioritize mislabeled products and set a schedule for referral to the attorney general’s office for consideration. The attorney general has also formed a task force to address unregulated psychoactive cannabis products, and litigation continues in a Missouri state court.
ASTHO will continue to monitor jurisdictional approaches and related litigation and provide any necessary updates.