Consumer protection concerns regarding the increasing sales of intoxicating hemp products continue to grow. Faced with an ambiguous regulatory landscape that has created a patchwork of enforcement and compliance challenges, state-level interventions aim to address the gaps left by the lack of federal regulations, ensuring consumer safety and market stability in the burgeoning hemp industry.
State attorneys general are not waiting on the federal government to provide clarity. At least eight Attorneys General—from both sides of the political aisle—have announced steps their offices are taking to address consumer safety in their states through a myriad of enforcement actions, attorney general opinions, and defending state laws. Even if laws are passed by Congress, state attorneys general will continue to maintain their active role in enforcing state consumer protection laws and any current or subsequent state laws regulating intoxicating hemp products.
Background: Where Did This Start?
Before we delve into the details on enforcement actions, it’s important to understand how this market for intoxicating hemp-derived cannabinoids developed seemingly almost overnight.
Hemp and marijuana are both derived from the same species of cannabis plant—the Cannabis sativa L. plant. The legal difference is currently dictated by the definition of hemp in The Agriculture Improvement Act of 2018 (the 2018 Farm Bill), which sets forth legality by definition. Specifically, the 2018 Farm Bill defines hemp as: “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 [THC] concentration of not more than 0.3 percent on a dry weight basis.” This definition implicitly requires the testing of cannabis on a dry weight basis, and only testing for delta-9 THC, because delta-9 THC is the main psychoactive compound in cannabis, and the most widely known and consumed.
This legislative change was intended to promote the cultivation of hemp for industrial purposes, and initially manufacturers extracted cannabidiol (CBD), a non-intoxicating cannabinoid found in hemp, to make products. While hemp plants are required to contain low levels of delta 9-THC (0.3% or less), hemp manufacturing companies have recently been synthesizing other cannabinoids from hemp (e.g., delta-8 and delta-10, which are both naturally occurring in hemp but in very small amounts, and HHC and THCO). .
The 2018 Farm Bill’s definition of hemp resulted in what many have called a “loophole” that allows intoxicating hemp products to be sold legally, as long as they meet the delta-9 THC threshold for hemp when tested on a dry weight basis. This has left a regulatory void, as the federal government has not provided comprehensive guidelines on the production, sale, and consumption of these products.
Since 2018, intoxicating hemp products including cannabinoids, such as delta-8 THC, have surged in popularity. Delta-8 THC is a cannabinoid found in trace amounts in hemp but can be synthesized from CBD extracted from hemp. Unlike CBD, delta-8 THC has psychoactive properties, albeit milder than delta-9 THC.
Intoxicating hemp products are often marketed as legal alternatives to marijuana and sold as consumables for inhalation or ingestion (e.g., gummies, beverages, vape products). These products are readily available in various retail outlets, including gas stations, convenience stores, and even bars, and many have not been tested for chemicals that can be harmful to human health. The lack of federal regulation has led to concerns about the safety, quality, and marketing of these products, which can be easily accessed by minors and unsuspecting consumers.
Response at the Federal Level
The Food and Drug Administration (FDA) has been slow to establish clear regulations or guidance, leading to a patchwork of state laws and a burgeoning market of unregulated products. For example, on April 11, 2024, the FDA Commissioner’s testimony before Congress stated:
H/T: www.cannabisbusinesstimes.com
