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Ohio Governor Takes Aim at Intoxicating Hemp Products

Ohio Governor Mike Dewine has been on a mission lately, imploring the legislature to do something to stop the surge of gas stations, smoke shops, and vape stores selling intoxicating hemp products (IHPs) across the state. IHPs are better known by their common names such as Delta 8, Delta 9, D9, or THCA flower. As the governor has made very clear, he wants the people of Ohio to know that IHPs are not the same thing as legal marijuana, they are not as tightly regulated, and for that reason they are dangerous.

What are IHPs exactly?

As we’ve shared, the answer is complicated. As more attention has been drawn to IHPs, it’s worth revisiting some key points.

  • Hemp and marijuana come from the same plant. The only thing that distinguishes them is a legal definition. The 2018 Farm Bill federally legalized hemp, which defined it as all parts of the plant, as well as the derivatives and isomers thereof, with a concentration of less than 0.3% of Delta 9 THC (THC). Hemp products, including IHPs, can be freely sold through interstate commerce, including via the internet.
  • THC is the primary intoxicating compound found in the plant. By defining hemp as all parts of the plant that contain only a fraction of THC, the intent was to differentiate hemp and legal marijuana by their intoxicating effects, hemp being the non-intoxicating part of the plant (business in the front), and marijuana being the intoxicating part (party in the back). It hasn’t worked out that way.
  • Delta 8 is an intoxicating compound that naturally occurs in the plant, but in minuscule amounts. For that reason, it isn’t commercially viable to grow hemp plants to produce Delta 8.
  • CBD, which is a popular non-intoxicating compound in the plant, is federally legal as hemp and can be freely sold through interstate commerce across the United States. CBD is cheaper to produce than highly regulated medical or adult-use marijuana, and it is in abundant supply. It didn’t take long after hemp was legalized for the industry to figure out that CBD can be chemically converted (or synthesized) into Delta 8, and THC and other IHPs.

Those are the basics. So why does all this matter? It all comes down to IHP regulations – or the lack thereof.

First, there are no federal or Ohio regulations or requirements for the testing of IHPs once the source hemp has been harvested. This means that the gummies and vapes being sold as IHPs have not been put through the rigorous testing processes required for legal marijuana products to detect potency, pesticides, heavy metals, and other contaminants.

Second, there are no federal or state regulations or restrictions on packaging, marketing, or advertising of IHPs. Not only are there no child safety packaging requirements for IHPs, many manufacturers and retailers seem to go out of their way to package their IHP products to resemble brand name candies. Nor do they display the same warnings and product information required of licensed marijuana manufacturers and retailers. Further, now that adult-use marijuana has been legalized in Ohio, IHPs are being marketed and advertised as legal marijuana.

Finally, there are no federal or state regulations pertaining to the sale of IHPs, meaning that that there are no age restrictions or other public safety guardrails restricting retail sales. Again, these products are available through the internet, but the lack of any Ohio regulations regulating the sale of IHPs allows gas stations, carryouts, smoke shops, vape shops, and other retailers to sell them freely in brick-and-mortar locations throughout Ohio, in many cases within 500 feet of schools, daycare centers, parks, and churches, something that licensed marijuana retailers are prohibited from doing.

It’s easy to see how Ohio consumers can easily become confused and unknowingly consume an IHP assuming it is legal marijuana. Expect the Ohio legislature to address IHPs with a standalone piece of legislation to be introduced in the Senate as early as next week. We’ll break it down here when that happens.

Mac Murray & Shuster is a nationally recognized firm focused on consumer protection and privacy regulatory compliance and litigation. With a team led by former state regulators, we provide comprehensive counsel to businesses of all sizes in highly regulated industries, including financial services, healthcare, teleservices, automotive, insurance, and consumer marketing.

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