Bipartisan groups of legislators in several states are launching efforts to ban or regulate intoxicating hemp products, as a flood of edibles, gummies and beverages rushes into the market, even in states where marijuana products are not yet legal.
Texas Lt. Gov. Dan Patrick (R) said last month he would prioritize legislation to ban all forms of consumable tetrahydrocannabinol, or THC, the psychoactive ingredient in marijuana.
The Illinois Senate has approved legislation backed by Gov. J.B. Pritzker (D) to impose limits on the amount of THC that intoxicating hemp products can include. That bill, which hit roadblocks in the state House on Tuesday, would set new regulations on how those products can be marketed or advertised.
Outgoing Missouri Gov. Mike Parson (R) ordered a ban last year on the sale of drinks, candy and other food that includes hemp-derived intoxicating substances. Georgia lawmakers restricted the sale of hemp products to those over 21; New Jersey Gov. Phil Murphy (D) implemented a similar age limit through an executive order, limiting the sales of those products to approved dispensaries.
The legislative and executive actions come after an explosion in the sale of hemp-based products that include a type of THC called delta-8. Those products suddenly became legal after the U.S. Congress approved the 2018 Farm Bill, a provision of which legalized hemp products.
But Congress made a distinction: The bill allowed hemp products so long as those products contained less than 0.3% of another strain of THC, delta-9 — the strain found in marijuana, which remains illegal. That allowed producers to make and sell products containing delta-8, an unintended consequence that led to an entirely new industry.
“I don’t think this was the intention of most people who allowed the farm bill to happen,” said Kevin Sabet, president of Smart Approaches to Marijuana, an anti-legalization group, and a former head of the White House Office of National Drug Control Policy. “This stuff is very dangerous.”
The largely unregulated industry of delta-8 products has raised concern from both marijuana legalization supporters, like Illinois’s Pritzker, and opponents, like Texas’s Patrick. It has also earned opposition from the legal marijuana industry, which sees delta-8 products as a competitor in the already crowded marketplace.
“We are not going to allow these retailers to circumvent the law and put Texans’ lives in danger,” Patrick said in a December statement announcing the legislation, sponsored by Sen. Charles Perry (R). He predicted the bill would win bipartisan support.
“These products have an intoxicating effect, often to dangerous levels,” Pritzker said at a December press conference. “They’re untested and unregulated and are widely available and accessible to young people.”
In just a few years, the market for delta-8 products exploded to nearly $2.8 billion by 2023, according to the cannabis analytics firm Brightfield Group. By comparison, the adult-use and medical cannabis industry reported sales of almost $32 billion in 2023.
The Brightfield Group estimated that about 1 in 20 adults used a delta-8 product in the middle of 2024. Sabet pointed to studies that show a larger share of minors — about 1 in 10 12th graders — have used delta-8 products in the past year.
Some cannabis industry experts said an outright ban on delta-8 products would only fuel a black market that legalization has sought to destabilize. Aaron Smith, who heads the National Cannabis Industry Association, said lawmakers should impose regulations, but that full bans would not achieve the intended result.
“There needs to be urgent action. We cannot have products like these just being sold in gas stations to minors and not being tested,” Smith said in an interview. But, he said: “It’s somewhat shortsighted to try to ban these products. The goal needs to be to fold them into some sort of regulatory system.”
There are efforts in Congress to undo the loophole created by the 2018 Farm Bill. U.S. Rep. Mary Miller (R-Ill.) and Sen. Ron Wyden (D-Ore.) have both introduced bills to impose age limits and testing requirements, though those bills did not make progress in the previous Congress.
State efforts to regulate delta-8 “are decent measures, but we really need a federal solution,” Sabet said.
Smith agreed: “The federal government has made these products legal and should be following up with regulation,” he said.
It’s not clear whether the Trump administration would make a priority of regulating delta-8 products. President-elect Trump has said he would leave marijuana policy to the states, though he supported a failed Florida ballot measure to legalize recreational pot in November’s election.
This post has been updated to reflect new legislative action in Illinois.