On April 21, Indiana Attorney General (AG) Todd Rokita issued a letter to state legislators addressing the pressing issue of legal loopholes surrounding intoxicating hemp-derived products containing delta-8 THC, delta-10 THC, or HHC. These products have garnered significant attention due to their psychoactive effects similar to Delta-9 THC, the primary compound in marijuana. In 2023, Rokita issued an official opinion concluding that these types of products are currently illegal in Indiana. Rokita’s letter discusses the proposed Senate Bill 478, which, among other things, seeks to regulate craft hemp, craft hemp flower products, and THC. Rokita concluded that the proposed bill would make these products legal, does not meaningfully regulate them, and encourages the legislature to reconsider the legislation.
Senate Bill 478
Senate Bill 478, titled “Craft Hemp Flower and THC Products,” proposes a comprehensive regulatory framework for the distribution and sale of craft hemp flower products. The bill establishes testing and packaging requirements, creates and modifies certain crimes related to craft hemp and THC, and clarifies that food containing low THC hemp extract or craft hemp flower is not considered adulterated. It also defines craft hemp flower products and excludes them from being classified as controlled substances. The bill prohibits the sale of specified products to individuals under 21 years of age and sets a cap of 20,000 retail permits for craft hemp. Additionally, it includes provisions for advertising regulation, onsite consumption, and the sale of craft hemp near schools. Generally, the bill prohibits the sale of these types of products if they contain more than 0.3% delta-9 THC by weight or volume. The bill also introduces penalties for violations and outlines the responsibilities of permit holders, including the prohibition of free samples at farmers’ markets. The bill would be effective retroactively from July 1, 2020.
Key Points From Rokita’s Letter
- The 0.3% delta-9 THC cap in Senate Bill 478 only applies to the hemp plant from which the THC is derived, not the finished product itself. There are no restrictions on the amount of THC (e.g., delta-8, delta-9, delta-10, or HHC) in gummies and edibles beyond a 100 mg per serving cap. Senate Bill 478 would allow 10 times the quantity of THC allowed in legal marijuana in other states, which is usually capped at 10mg per serving.
- Senate Bill 478 does not impose a limit on how many purchases an individual can make in one day.
- Senate Bill 478 would allow 20,000 retail permittees to sell these products, which will be available for purchase online. The marketplace will be flooded with these products, which will end up in the hands of minors.
- Rokita requests that the legislature consider prohibiting the sale of all synthetically produced cannabinoids, dramatically reduce the THC cap to 2.5 mg per serving, limit the distribution of these products in retail stores, prohibit online sales, and/or tax the sale of these products.
Why It Matters
The federal 2018 Agricultural Improvement Act (the Farm Bill) legalized industrial hemp by defining it as cannabis containing no more than 0.3% total delta-9 THC by dry weight, and Indiana and other states allow for the sale and possession of such delta-9 THC products. The hemp industry has relied on the Farm Bill to create intoxicating hemp products that do not contain delta-9 THC, and neither the federal government nor many states clearly regulate these products. States and AGs have been active in attempting to close this so-called Farm Bill loophole, and this is yet another example of such action.
Our Cannabis Practice provides advice on issues related to applicable federal and state law. Cannabis remains an illegal controlled substance under federal law.
