Attorneys General Group Hosts Meeting On State-Level Regulation Of Intoxicating Hemp Products
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Current and former state officials, advocates and business representatives met last week to discuss the legal landscape around hemp-derived cannabinoid products, including what led to the explosion of intoxicating products across the country, potential harms posed by the largely unregulated market and how policymakers are moving forward amid the uncertainty.
Hosted by the Attorney General Alliance (AGA), a nonprofit that represents state attorneys general, the June 4 webinar featured current and former officials from Oregon, Florida, California and Nevada as well as representatives of business and advocacy groups.
The presentation, “Illicit Hemp-Derived Intoxicants: State Enforcement Mechanisms and Challenges,” was part of AGA’s Cannabis Project, which the group says “seeks to provide interested parties an opportunity to dialogue on how cannabis legalization might preserve public health and safety, protect consumers and ensure the rule of law, while also respecting the role of states to innovate and experiment as laboratories of democracy.”
Since Congress passed the 2018 Farm Bill, which legalized hemp nationwide, largely unregulated products containing not only CBD but also psychoactive THC—which the Farm Bill sought to limit in hemp products—have proliferated online and at storefronts across the country.
That, speakers said, has allowed broad access by minors to intoxicating products, caused confusion among law enforcement—who often struggle to tell legal hemp products apart from federally illegal marijuana—and undercut state-regulated medical and adult-use cannabis markets.
At the state level, policymakers are now taking steps of their own to rein in the products, though often with different approaches.
In 2023, said Chris Lindsey, director of state advocacy and public policy at the American Trade Association for Cannabis and Hemp (ATACH), only about eight or nine states had laws on the books around hemp-derived cannabinoids. Since then, he explained, “we’ve seen states rush in to this space.”
“Around 41 [states] actually have laws on the books now that try to address it,” Lindsey noted. “Of course, those laws are inconsistent. They’re all over the board. They’re taking different approaches. But it speaks to the fact that lawmakers and regulators are now a much more attenuated to the challenges, the terminology, the different loopholes that have occurred.”
Multiple states—from California to Florida—have moved to ban intoxicating cannabinoids in recent months. In Texas, the legislature recently delivered a bill to the governor that would outlaw all consumable hemp-derived cannabinoid products containing any detectable THC.
Erin Williams, an assistant attorney general in Oregon’s Department of Justice who was not speaking on behalf of the agency, said AGs’ offices can also “rely on their credibility as the top legal agency in their state to seek federal change,” referencing a 2024 letter sent by 21 state AGs calling on federal lawmakers to amend the federal definition of hemp.
“As Congress prepares to embark on a new five-year reauthorization of the Farm Bill,” that letter said, “we strongly urge your committees to address the glaring vagueness created in the 2018 Farm Bill that has led to the proliferation of intoxicating hemp products across the nation and challenges to the ability for states and localities to respond to the resulting health and safety crisis.”
As federal lawmakers consider changes—a congressional committee earlier this month approved a bill that would ban all hemp products containing THC—Williams said attorneys general can also take other steps to limit possible harms, for example by issuing advisory opinions, offering guidance to lawmakers and targeting false claims under their consumer protection authority.
One ongoing obstacle, she pointed out, is that it’s typically easier for state regulators to enforce laws against in-state companies compared to manufacturers of products sold online.
Other speakers acknowledged that vagueness in the Farm Bill may have unintentionally created the intoxicating hemp market but said that getting a handle on the products required more than merely taking enforcement actions against hemp products, as some jurisdictions have sought to do.
“I see some of the same mistakes being made in the hemp environment across the states and at the federal level, because we have either either under-regulated the product or over-regulated hemp products,” said Diane Goldstein, a retired police lieutenant and chair of the Law Enforcement Action Partnership (LEAP), likening the approach to the early days of marijuana in California, which she described as the Wild West.
The hemp market is now similarly in its infancy, Goldstein said, “and law enforcement is having a really difficult time discerning who’s the good actor and who’s the bad actor.”
“We need some clear directions so we don’t sweep people up into the criminal justice system for products that are potentially technically legal,” she urged, encouraging policymakers to seek out best practices and craft thoughtful policy.
Michelle Minton, senior policy analyst at libertarian think tank the Reason Foundation, explained model legislation she’d developed for possible use by state officials. Much of the current situation around hemp products, she contended, stems from broader bans on marijuana.
“The root cause, as far as I see it, as we see in my organization, is actually marijuana prohibition that still exists at the federal level,” Minton said.
“Most of the consumers who are pursuing these products don’t want a ‘marijuana-like product,’” she said. “They want marijuana, but for whatever reasons, they don’t have adequate access to those legal marijuana products.”
Among the policy recommendations in the model legislation are to allow most forms of cannabis products—including flower, vape products and edibles and beverages, Minton said. Products would be tested, labeled and available only to consumers 21 and older.
“Most hemp cannabinoids should remain legal as well, including the ones that are sometimes called synthetic or synthesized,” she continued. “But then we kind of left leeway for the states to prohibit truly artificial cannabinoids, the ones that do not naturally occur in in cannabis plants.”
The goal, she said, was to close loopholes that allow a lot of unregulated products to be flowing through the market.”
“If a model like this were implemented,” Minton concluded, “this should come with similar reforms on the marijuana industry, so that they can feel slightly more lightly regulated [and] have fewer costs.”
Many state-licensed cannabis companies have complained that intoxicating hemp products unfairly compete with marijuana because they aren’t subject to the same degree of regulation and typically are taxed at lower rates.
Another speaker, Kelly Vance, assistant director of the Division of Food Safety at the Florida Department of Agriculture and Consumer Services, noted the difficulty of drawing a hard line between naturally occurring and synthesized cannabinoid products.
“You can look at the molecular structure of delta 8 [THC] and heroin, they’re not terribly different,” he said. “So if you make the argument—and successfully—so that you can take CBD, convert it to delta 8, and it’s legal under the Farm Bill. You take it three, four, five, 10 more steps in a laboratory and create heroin. Did you just legalize heroin under the same argument?”
During a short Q&A portion of the webinar, an audience member asked whether only retailers with liquor licenses should be able to sell intoxicating hemp products—a position some alcohol trade groups have endorsed.
“I would say that any retailer that is permitted or licensed to sell age gated adult products, and is that has shown to do that effectively, should be able to sell a another type of adult intoxicating product,” Minton at the Reason Foundation replied, “and then you still have the control of, if they’re failing to appropriately age gate, you can strip them of their permit or license.”
Asked to look into the future, speakers said they expected Congress to attempt to close the hemp loophole.
“I’m lobbying Congress on that issue, so I am confident that Congress will close the loophole,” said Lindsey at ATACH, “if for no other reason [than] that there are no other products in the United States that run free.”
Even water is regulated once it falls from the sky, Lindsey added. “They are going to regulate intoxicants from hemp. It’s a matter of when.”
With recent sign-off from a congressional subcommittee, the latest legislation that would ban intoxicating cannabinoids now proceeds to a full House committee for consideration.
The 138-page bill covers a wide range of issues, but for the hemp industry, there’s a section of particular concern that would redefine hemp under federal statute in a way that would prohibit cannabis products containing any “quantifiable” amount of THC or “any other cannabinoids that have similar effects (or are marketed to have similar effects) on humans or animals” as THC.
Rep. Andy Harris (R-MD), chair of the subcommittee, said in opening remarks that the legislation “closes the hemp loophole from the 2018 Farm Bill that has resulted in the proliferation of intoxicating cannabinoid products, including delta-8 and hemp flower being sold online and in gas stations nationwide under the false guise of being ‘USDA approved.’”
“As many states have stepped in to curb these dangerous products from reaching consumers, particularly children, it’s time for Congress to act to close this loophole, while protecting the legitimate industrial hemp industry,” he said.
That would effectively eliminate the most commonly marketed hemp products within the industry, as even non-intoxicating CBD items that are sold across the country typically contain trace amounts of THC. Under current law, those products are allowed if they contain no more than 0.3 percent THC by dry weight.
The hemp language is largely consistent with appropriations and agriculture legislation that was introduced, but not ultimately enacted, under the last Congress.
Hemp industry stakeholders rallied against that proposal, an earlier version of which was also included in the base bill from the subcommittee last year. It’s virtually identical to a provision of the 2024 Farm Bill that was attached by a separate committee last May via an amendment from Rep. Mary Miller (R-IL), which was also not enacted into law.
“If this amendment becomes law, it will destroy the entire American hemp industry and set back a decade’s worth of progress to fully legalize cannabis,” Jim Higdon, co-founder of the Kentucky-based company Cornbread Hemp, told Marijuana Moment. “Democrats and Republicans who believe in freedom should oppose Rep. Harris’s attack on American hemp farmers.”
Meanwhile, alcohol industry representatives descended on Washington, D.C. in April to urge members of Congress to create a federal regulatory framework for intoxicating hemp-derived products such as cannabinoid-infused beverages—a market segment that’s ballooned since the legalization of hemp through the 2018 Farm Bill.
A report from Bloomberg Intelligence (BI) last year called cannabis a “significant threat” to the alcohol industry, citing survey data that suggests more people are using cannabis as a substitute for alcoholic beverages such a beer and wine.
Last November, meanwhile, a beer industry trade group put out a statement of guiding principles to address what it called “the proliferation of largely unregulated intoxicating hemp and cannabis products,” warning of risks to consumers and communities resulting from THC consumption.
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