California and Missouri are the latest states to target hemp-based products containing intoxicating cannabinoids. On Sept. 23, 2024, California signed into law emergency regulations aimed at protecting children from the potential adverse effects of hemp products containing psychoactive cannabinoids. Under these regulations, industrial hemp products intended for human consumption, including food, beverage and dietary products, cannot contain detectable tetrahydrocannabinol (THC) or any other intoxicating cannabinoids. The regulations also restrict the number of servings within any edible hemp product to five servings per package and implement a minimum age requirement for the purchase of hemp products, such that individuals must be 21 years and over to purchase hemp products in California.
Similarly, the governor of Missouri issued an executive order on Aug. 1, 2024 to ban unregulated psychoactive cannabis products. This ban also prohibited unregulated psychoactive cannabis products from being sold by liquor-licensed establishments. Missouri’s executive action has faced litigation, which resulted in the Department of Health and Senior Services issuing a letter on Sept. 17, 2024, clarifying the department’s enforcement policy regarding psychoactive hemp products. A number of other states, including Florida and Illinois, have also introduced bills aimed at regulating intoxicating hemp cannabinoids.
Under the 2018 Farm Bill, a product is deemed “industrial hemp” and not marijuana if it contains less than 0.3% of Delta-9 THC, the intoxicating substance in marijuana, on a dry net weight basis. However, some products that may be considered hemp also contain other psychoactive cannabinoids, including Delta-8 and Delta-10. Like Delta-9, Delta- 8 and Delta-10 are psychoactive cannabinoids, but they are considered to be less potent than is Delta-9. Certain industry players have argued that these products are permissible because marijuana federal law depends on the quantity of Delta-9 THC being above .3% on a dry net weight basis. Given that these products are often sold by commercial establishments as food and beverage products, hemp products with psychoactive hemp cannabinoids have recently been subject to increased scrutiny by state regulators because of their potential appeal to children.
With increasing state scrutiny of intoxicating hemp cannabinoids, manufacturers, distributors and retailers of hemp products should be apprised of the current regulatory climate. Moreover, players in the hemp industry should be aware of supply chain issues and understand the implications of hemp sales in certain states.
