21 State Attorneys General Advocate for End of Novel Cannabinoid Products

On March 20, 2024, a coalition of 21 state attorneys general sent a letter to Congress advocating for federal clarification on the definition of hemp, and an end to what the letter calls the “loophole” surrounding intoxicating or novel cannabinoid products.

The letter was sent in anticipation of this year’s expected reauthorization of the 2018 Farm Bill, which legalized hemp cultivation, processing, and production under Federal law. In doing so, the bill defined legal hemp as cannabis containing .3% or less THC-9.  However, in expressly including THC-9 in the definition of hemp, the Farm Bill excluded other cannabinoids. The result was a large “gray market” of semi-legal hemp-derived products containing .3% or less THC-9, but large amounts of other “novel cannabinoids” such as THC-A.  Many of these hemp-derived or novel cannabinoid products, such as THC-8 or “delta-8” goods, are widely available in traditional retail establishments and can have intoxicating effects.

Now, the 21 attorneys general are seeking to have “[t]he definition of hemp…be amended to clarify that there is no federal hemp intoxicants loophole[.]” The letter requests that the upcoming reauthorization of the Farm Bill “reaffirm that members of Congress do not intend to limit states in restrictions or regulations related to cannabinoids or any other derivatives of hemp which are deemed intoxicating.” The letter additionally notes that these substances are subject to limited oversight and regulation and are often sold in product forms, such as candy, that are attractive to children.

While the letter does not appear to explicitly target the cannabinoid CBD, it does note that a large amount of intoxicating cannabinoid products currently on the market are inherently manufactured or processed with hemp-derived CBD.

The attorneys’ general letter is sure to have massive repercussions for non-cannabis retail establishments offering hemp-derived or novel cannabinoid products. For example, since passage of the Farm Bill, many traditional retail establishments such as gas stations and grocery store chains have viewed novel cannabinoids as relatively permissible cannabis-adjacent products that are federally legal and can be widely offered to consumers. The letter, however, indicates that attorney general signatories may soon take a more active role in enforcement actions against novel cannabinoid suppliers. Even in states that did not participate, the letter is likely to have a significant influence on cannabis guidance and enforcement priorities.

Retail establishments must ensure they audit their hemp-derived and novel cannabinoid product offerings in the wake of the letter. Retailers should also consult with legal counsel to carefully examine their particular state’s laws, as well as their attorney general’s guidance, regarding the permissibility of novel cannabinoids. Retailers should also make efforts to review the specific type of novel cannabinoid products they offer, and whether they have an intoxicating effect. In addition, employers generally should work with counsel to ensure that their cannabis use policy addresses the use of novel cannabinoids and hemp-derived products.