Legislators in more than a dozen states are advancing bills that would include new types of hemp-based products under legal definitions that cover marijuana, after federal lawmakers inadvertently created a new market for intoxicating substances.
Bill language varies widely across states, though most seek to create new legal definitions for products that contain delta-8, delta-10 and other forms of psychoactive tetrahydrocannabinol, or THC, the psychoactive ingredient found in marijuana plants.
Many bills seek to require those products to come in child-safe packaging, and to be clearly labeled, as legislators try to regulate an industry that has emerged in recent years.
“An entire industry has developed in a legal gray area,” Pennsylvania Sen. Dan Laughlin (R) said at a hearing on those products on Tuesday. “The goal is to bring consistency, safety and transparency to the marketplace.”
The new hemp-derived products emerged after 2018, when Congress approved a new version of the Farm Bill. That bill included a provision allowing the production of hemp-based products with no more than 0.3% of a different strain of THC, delta-9. The bill removed a ban that classified hemp as a controlled substance, the equivalent of many harder drugs such as heroin and cocaine.
But those in the industry say the 0.3% cutoff only applies to plants in the field. Once those plants are harvested, they can be used to make products — vapes, edibles and oils — that are much more potent.
“The minute you harvest the plant and you start processing it into products, 0.3% no longer really makes sense, and in fact it’s no longer a cap at all. If you have a large product like a beverage or a great big gummy, that allows a fantastic amount of intoxicant into that product,” Chris Lindsey, vice president of policy and state advocacy at the American Trade Association of Cannabis and Hemp, told Pennsylvania lawmakers. “There’s a whole wide range of new chemical drugs that are coming out of this entire process.”
Today, 29 states have some form of regulation covering new hemp-derived products. Lawmakers in Hawaii, Minnesota, North Dakota, Tennessee and West Virginia this year approved new laws defining those products, limiting THC content and requiring clear labeling and packaging. Other bills remain alive in a dozen more states.
Texas Gov. Greg Abbott (R) vetoed legislation that would have banned those marijuana products outright, a top priority of Lt. Gov. Dan Patrick (R). Abbott said the measure would not survive legal scrutiny and called lawmakers back into session next month to address the matter again.
Read more: Abbott vetoes THC ban, calls special session
Other measures died in Alabama, Arkansas, Florida, Maine and New Hampshire. A measure that cleared Pennsylvania’s Democratic-controlled House died in the Republican-controlled Senate; Laughlin, who chairs the Senate Law and Justice Committee, held a hearing Tuesday on possible approaches to regulating consumable hemp products.
Witnesses testified that the new hemp-derived products are widely available in smoke shops and convenience stores, as well as online. Those products come from all over the country, including some that are made in the state.
But they may not be so readily available in the future: Lindsey, the advocate for the cannabis and hemp industry, said Congress was likely to reverse course the next time a farm bill comes up.
“The federal government will absolutely close the door on these products,” Lindsey said. “Members of Congress do not appreciate that what they tried to do in the farm bill so quickly blew up.”