Introduction
In 2018, the Agriculture Improvement Act, frequently referred to as the 2018 Farm Bill, removed legal barriers to industrial hemp production by removing hemp, defined as the plant cannabis sativa L. with a Delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3% on a dry weight basis, from the federal Controlled Substances Act. In response, Ohio enacted Senate Bill 57 in July 2019 to legalize production of hemp in Ohio and in December 2019 received one of the first hemp production approvals from the U.S. Department of Agriculture.
The vast majority of today’s hemp industry revenue is derived from the plant’s production of metabolites such as cannabigerol (CBG) or cannabidiol (CBD). These metabolites are used not only as non-euphoric additives in a variety of products, but also to extract psychoactive substances, such as Delta-8 tetrahydrocannabinol, which are used in the production of intoxicating consumer products. Because the federal government has not yet acted to regulate this aspect of the hemp industry, the production and sale of so-called “intoxicating hemp products” exist in a legal gray area under federal law.
The proliferation of these products in many retail outlets has led to concerns about their safety, quality, and marketing among policymakers and public health experts. Many states have taken steps under state law to regulate intoxicating hemp product. According to a recent Reason Foundation report, Ohio is currently among a minority of states with minimal or no regulations on these products, though several bills are currently pending in the Ohio General Assembly as shown in Table 3.
NOTE: This page was released November 12, 2024. It does not incorporate citations. Download the report below to find the full list of sources and references used.
Considerations for Regulating Intoxicating Hemp Products
Explore our report, published November 8, 2024, to access the full text, including a list of sources and references used.
Understanding "Intoxicating Hemp Products"
In broad terms, an “intoxicating hemp product” is a hemp-derived product that contains cannabinoids in concentrations high enough to produce psychoactive effects when consumed. These cannabinoids occur naturally in hemp plants, although their extraction requires extensive manipulation via chemical processes. Below we list the most commonly used naturally occurring cannabinoids in hemp:
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CBD (cannabidiol) is the second most prevalent active ingredient in cannabis plants but is not psychoactive. CBD is used for treating childhood epilepsy syndromes and evidence suggests that CBD may also help with a variety of conditions such as anxiety, insomnia, and chronic pain.
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Delta-8 THC is a psychoactive cannabinoid found in the Cannabis sativa plant. It is an isomer of Delta-9 THC (which is also present in hemp) but occurs only at minuscule levels in natural cannabis. High levels of Delta-8 THC can be produced by chemically converting CBD or Delta-9 THC through a process known as isomerization. All Delta-8 THC products are manufactured by some form of chemical conversion. Consumer products with Delta-8 include gummies, other edibles, drinks, tinctures, vapes, and more.
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THC-A (tetrahydrocannabinolic acid) occurs naturally in cannabis plants and is a precursor of THC. THC-A does not produce a high unless smoked or vaporized, which causes it to change into Delta-9 THC. It is present in hemp products such as vapes and pre-rolls, which can then be heated to convert it to THC.
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THC-O, also known as THC-O acetate, is a semi-synthetic cannabinoid. It is not found naturally in the cannabis plant but is technically derived from hemp. It is derived from Delta-8 THC and is said to be stronger than regular THC; however, more research is required to understand its effects. THC-O products can include vapes, edibles, and concentrates.
Table 1. State legality of intoxicating hemp products
| Legality | States |
|---|---|
| Illegal – Fully Prohibited | Colorado, Delaware, Hawaii, Idaho, Iowa, Mississippi, Montana, Nevada, New York, North Dakota, Rhode Island, South Dakota, Utah, Virginia, Washington |
| Legal – Unregulated | Alabama, Arkansas, D.C., Illinois, Indiana, Kansas, Maine, Massachusetts, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Texas, West Virginia, Wisconsin, Wyoming |
| Legal – Regulated as Consumer Goods | Louisiana, Maryland, Minnesota, Tennessee, Florida, Georgia, Kentucky |
| Legal – Regulated as Cannabis | Alaska, Arizona, California, Connecticut, Michigan, Vermont, Oregon |
| Legal with Exceptions – Bans on Synthesized Hemp-Cannabinoids | Alaska, Oregon, Vermont, Hawaii, Nevada, North Dakota, Washington, Wyoming (contested) |
| Legal with Exceptions – Bans on Specific Hemp-Cannabinoids | Louisiana (THCA flower), Virginia (Delta-8), Indiana (smokable hemp flower), New York (synthesized THC, Delta-8, Delta-10), Washington (Delta-8), West Virginia (Delta-8, Delta-10), Wyoming (Delta-8) |
This table was adapted from the Reason Foundation report, A Framework for Federal and State Hemp-Derived Cannabinoid Regulation.
Priority Areas of Concern
Policymakers and stakeholders have expressed a range of concerns regarding the proliferation of intoxicating hemp products. Some of the most common and prominent concerns include use by youth and children’s accidental exposure, consumer safety, and balancing interests of the hemp and adult-use marijuana industry.
Use by Youth and Children’s Accidental Exposure
At present, the state of Ohio does not have any laws or regulations restricting access to intoxicating hemp products by children or adolescents. Unlike marijuana products that are restricted to adults who are 21 or older and that can only be sold in licensed dispensaries, intoxicating hemp products can be sold at any store and do not carry any age restrictions. Additionally, because they are not covered by any of the adult-use marijuana regulations, there are no restrictions on how they are packaged, whether they are designed to appeal to children, or whether they are marketed specifically to children and adolescents. According to the 2023 Monitoring the Future survey from the National Institute on Drug Abuse, 11.4% of high school seniors reported Delta-8 THC use, with prevalence higher in states without marijuana legalization or existing Delta-8 THC regulations. The unfettered access is problematic in part because any psychoactive THC substance, whether Delta-8 or Delta-9, can negatively affect brain development in adolescents and impact other aspects of their lives.
Consumer Safety
Various consumer issues have emerged with intoxicating hemp products: inconsistent and unmonitored production processes, lack of rigorous testing conducted by reputable testing labs, lack of research on possible effects of use, and lack of standardized, easy-to-understand labeling of products. According to the FDA, some manufacturers use potentially dangerous household chemicals to make Delta-8 THC, and other chemicals may be used to alter the look of the final product. Other contaminants may be present in the raw material, which could lead to adverse health effects for people who use the products. Analysis of Delta-8 products has found discrepancies in potency between the product and what is stated on the packaging, along with heavy metals and other adulterants. Due to the questionable quality of the raw material, the chemicals used in the production process, and potential by-products created during synthesis, there are many opportunities for harmful contamination and by-products that could cause short- and/or long-term health issues.
Balancing Interests of the Hemp and Adult-Use Marijuana Industry
With the growth of a new hemp industry, policymakers nationwide have been forced to consider how to balance the interests of the hemp industry and the adult-use marijuana industry. Though the national market for intoxicating hemp products is estimated to be only about 10% of the overall size of the marijuana industry, the market has grown rapidly and provides a form of competition to highly regulated marijuana products.
There is limited data on the intoxicating hemp industry in Ohio, though the Ohio Department of Agriculture reports that the number of farmers involved in hemp production is relatively small in the Buckeye State. What is quite clear, however, is the presence of vastly different regulatory regimes for the production and sale of marijuana and intoxicating hemp products in Ohio. As shown in Table 1, while the Ohio adult-use marijuana industry carries a heavy regulatory burden and is subjected to high regulatory costs, the hemp industry and its products are regulated very lightly thus creating an uneven playing field for their products. Unless the Ohio legislature chooses to completely ban intoxicating hemp products, Ohio legislators should consider the range of regulatory realities noted below as they try to balance the interests of these two competing industries.
Table 2. Regulatory differences between the adult-use marijuana and hemp industries in Ohio
| Sector |
Area of Regulation |
Adult-Use Marijuana Regulations | Hemp Regulations |
|---|---|---|---|
| Cultivator | License fee |
Cultivator Level 1:
Cultivator Level 2:
|
Application fee: $100. Annual license fee: $500 for each growing location. |
| Cultivator | License limit | No official caps on licenses. However, there are certain limits to the initial number of licenses and how many will be allocated over time. License holders are limited to one adult-use cultivator license unless authorized additional licenses by the Division. | No limit. |
| Cultivator | Geographic location |
Cannot be located within 500 feet of a prohibited facility, which includes churches, public libraries, public playgrounds, public parks, and schools. ORC 3780 establishes specific exceptions for cultivator licenses. Municipalities can prohibit operators within their jurisdiction. |
Prohibited from growing within 100 feet from any structure that is used for residential purposes. Prohibited from growing within a half a mile from a medical marijuana cultivator (with exceptions). Prohibited from growing within 500 feet of a school or public park (with exceptions). Municipalities cannot restrict operators from their jurisdiction. |
| Cultivator | Size limitation |
Level I Cultivators: up to 100,000 sq ft of cultivation area. Level II: up to 15,000 sq ft of cultivation area. Level III: up to 5,000 sq ft of cultivation area. |
Outdoor: minimum ¼ acre (with exceptions). Indoor: Minimum area of at least 1,000 sq ft (with exceptions). Growing location must have a minimum of 1,000 plants (with exceptions). |
| Cultivator | Security regulations |
Must have standards for security and surveillance equipment for adult-use operators. Operators have the option to use armed or unarmed guards for license locations. Operators must develop plans for risk prevention, theft and fraud prevention, surveillance and security, and other emergency-related measures. |
No regulations in respect to security of property. |
| Cultivator | Tracking of product |
Seed-to-sale electronic tracking data system. Tracking system is live and updated in real time. |
Growing locations may be subjected to a random sampling and inspection at any time to make sure plants are under the required 0.3% of Delta-9 THC. Licensee must submit annual planting and production reports. This includes location, acres planted and harvested, plant variety name, primary use of harvest for each planting, and any other required information. There is no seed-to-sale tracking system. |
| Cultivator | License fee |
Cultivator Level 1:
Cultivator Level 2:
|
Application fee: $100. Annual license fee: $500 for each growing location. |
| Processor | License fee |
$10,000 Application fee. $90,000 Licensure fee. $50,000 Annual renewal fee. |
Application fee: $100. Annual license fees: Range from $250 to $3,000 depending on how the plant is being processed. Licenses are valid for three years. |
| Processor | License limit | No official caps on licenses. However, there are certain limits for the initial number of licenses and how many will be allocated over time. License holders are limited to one adult-use processor license unless authorized additional licenses by the Division. | No limit. |
| Processor | Geographic location |
Cannot be located within 500 feet of a prohibited facility, which includes churches, public libraries, public playgrounds, public parks, and schools. Municipalities can prohibit operators within their jurisdiction. |
Prohibited from processing, handling, or storing hemp/hemp products in or adjacent to any structure used/zoned for residential purposes. Prohibited from processing hemp within 500 feet of a school or public park with exceptions. Municipalities cannot restrict operators from their jurisdiction. |
| Processor | Security regulations |
Must have standards for security and surveillance equipment. Operators have the option to use armed or unarmed guards for license locations. Operators will develop plans for risk prevention, theft and fraud prevention, surveillance and security, and other emergency-related measures. Marijuana is tracked through an electronic tracking system. |
No security regulations, except OSHA. |
| Processor | Testing requirement |
Products must be tested by a laboratory certified and licensed by the Division of Cannabis Control. Processors must abide by testing standards and regulations established by ORC 3780 and subsequent rules. |
Randomly sample each batch or lot. Must be tested by an ISO-certified lab that meets the requirements established by law. Test for cannabinoid potency, contaminants, mycotoxins, heavy metals, and residual solvents. |
| Retailers | Retailer License |
$5,000 Application fee. $70,000 Licensure fee (2-year license). $70,000 renewal fee. |
No retailer license for businesses selling hemp products. |
| Retailers | License Limits | No official caps on licenses. However, there are certain limits to the initial number of licenses and how many will be allocated over time. License holders are limited to eight adult-use dispensary licenses unless authorized additional licenses by the Division. | There are no license limits or caps on retailers selling hemp-derived products to consumers. |
| Retailers | Oversight Entity in Charge of Retail Sales | Division of Cannabis Control (within the Department of Commerce) | Department of Agriculture oversees the hemp program but does not explicitly license retailers selling hemp products. |
| Retailers | License Enforcement | The Division has the authority to immediately revoke and suspend licenses found non-compliant with the rules and regulations of the adult-use program. |
ODA does not have authority over retailers because they are not licensed. Products sold by retailers must meet Ohio’s food safety standards and be inspected by the appropriate state or local agency. |
| Retailers | Product Sourcing |
Licensed marijuana dispensaries can only purchase products from processors licensed in the state of Ohio. No product can be purchased from another state. |
Products can be purchased from any licensed processor, regardless of where the processor is licensed, where the hemp is grown, and where the product is produced. |
| Retailers | Product Testing | Products sold by licensed dispensaries must undergo testing and be approved by a certified testing laboratory approved by the Division. | Products are tested by a third-party testing laboratory with ISO/IEC accreditation. Testing occurs during cultivation and processing. Products must be under the 0.3% THC threshold. |
| Retailers | Employee Standards | Dispensary employees must be 21 years old, undergo training and background checks, and obtain a license to sell to adult-use consumers. | There are no requirements or standards for employees selling hemp products at retailers. |
| Retailers | Geographic Location |
Cannot be located within 500 feet of a prohibited facility, which includes churches, public libraries, public playgrounds, public parks, and schools. A dispensary cannot be located within one mile of another dispensary. ORC 3780 establishes specific exceptions for dispensary licenses. Municipalities can prohibit operators within their jurisdiction. |
No geographical restrictions for hemp retailers. Municipalities cannot prohibit operators within their jurisdiction. |
| Testing Laboratories | Standards | Testing laboratories must be independent and licensed through the Division of Cannabis Control using their certification process. | Testing labs must be ISO/IEC 17025 accredited. ODA may contract with third-party laboratories to provide testing services on its behalf. ODA is the official regulatory body for compliance testing. |
| Testing Laboratories | Conflict of Interest | Testing laboratory licenses cannot be owned, have any investment, or have compensation ties with any adult-use operator licensee or applicant. | There are no restrictions limiting ownership or investment interests in hemp testing laboratories. |
| Consumers | Age Limitations | Consumers must be 21 years of age to purchase adult-use marijuana from a licensed dispensary. | There are no age requirements for individuals purchasing hemp products from a retailer. |
| Consumers | Possession Limits | 2.5 ounces of marijuana in any form except extract, 15 grams of extract. May purchase 2.5 ounces from dispensary per day. | There are no possession limits for an individual possessing a hemp-derived product. |
| Other Administrative Rules | Local Authority | Localities may ban adult-use dispensaries but cannot restrict existing medical marijuana businesses or co-located adult-use operations with medical certificates at the same location. | There are no provisions allowing local authorities to ban licenses or retailers. |
| Other Administrative Rules | Taxes | Adult-use marijuana is subject to a 10% excise tax, in addition to the state and local sales taxes ranging from 5.25% to 7.5%. | Hemp-derived products are not subject to an excise tax, but state and local taxes do apply. |
| Other Administrative Rules | Advertising | Adult-use products may not be advertised in a way that targets minors, promotes illegal activity, or promotes excessive use. The Division of Cannabis Control may adopt time and place restrictions to prevent advertising to minors. | The hemp program has not established advertising restrictions for hemp-derived products. |
| Other Administrative Rules | Packaging and Labeling Standards | Cannabis packaging regulations mandate child-resistant containers, clear THC warnings, and potency details to ensure consumer safety and prevent misuse. |
Hemp product labeling must state CBD content and confirm Delta-9 THC levels below 0.3%. There are no standards or regulations requiring labeling for other psychoactive ingredients. There are no regulations prohibiting products that are attractive to children. There are no regulations for child-resistant packaging. |
Ohio Regulatory Options Based on Priority Areas of Concern
Several bills have been introduced in the Ohio General Assembly that address the challenge of regulating intoxicating hemp products (see Table 3 for detailed review of all bills). Below we present some of the regulatory options Ohio legislators have as they consider various proposals for the regulation of intoxicating hemp products. For additional details on each of those options, please download our full report.
Regulatory Options to Prevent Use by Youth and Children’s Accidental Exposure
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Adopt a 21-year-old age limit requirement for purchases of intoxicating hemp products
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Adopt child-resistant packaging requirements developed for Ohio adult-use marijuana market
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Adopt regulations prohibiting advertising to minors developed for Ohio adult-use marijuana market
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Adopt location restrictions developed for Ohio adult-use marijuana market for intoxicating hemp product retailers in respect to schools, libraries, parks, and playgrounds
Regulatory Options to Protect Consumer Safety
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Adopt manufacturing and product safety standards
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Establish resting regulations for finished intoxicating hemp products at the wholesale level
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Adopt labeling regulations developed for Ohio adult-use marijuana market
Regulatory Options to Balance Interests of the Hemp and Adult-Use Marijuana Industry
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Charge the same excise tax on intoxicating hemp-infused products
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Regulate retail outlets
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Establish clear penalties for non-compliance
Administrative Regulatory Considerations
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Define what constitutes an intoxicating hemp product
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Adopt regulations for all products sold in the state of Ohio irrespective of where they are produced
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Collect data and provide education
Table 3. Pending legislations in Ohio General Assembly addressing intoxicating hemp products
| Policy Option | House Bill 86 (introduced Feb. 2023) | Senate Bill 278 (introduced May 2024) | House Bill 642 (introduced July 2024) | Senate Bill 326 (introduced Nov. 2024) |
|---|---|---|---|---|
| Age Limit Requirement | Not addressed | No one may sell adult-use hemp products to anyone under 21 | HB 642 requires the Director of Agriculture to study and recommend minimum age requirements for buying adult-use hemp and penalties for underage sales. | SB 326 sets penalties for selling intoxicating hemp to anyone under 21 and prohibits all sales of intoxicating hemp in Ohio. |
| Child Resistant Packaging | Not addressed | Not addressed | Not addressed | Not addressed |
| Advertising Restrictions for Minors | Not addressed | Not addressed | HB 642 requires the Director of Agriculture to study and recommend advertising and labeling rules for adult-use hemp. It also calls for additional recommendations, with input from the Department of Public Safety, to help ensure these products are safe and inaccessible to children and underage individuals. | Not addressed |
| Retailer License Requirements | Not addressed | No retail license is required, but retailers must restrict sales to those 21+, verify age, sell only from permanent buildings, keep products behind the counter, and only remove them after sale completion. | HB 642 requires the Director of Agriculture to recommend locations for adult-use hemp sales, including storage restrictions at retail locations. |
SB 326 prohibits any business from selling intoxicating hemp products. |
| Geographic Limitations (Prohibited Places) | Requires hemp cultivators to keep a set distance from medical or adult-use marijuana cultivation sites, unless the marijuana cultivation begins after the hemp operation. Prohibits hemp processing in residences or on residential-zoned land. | Not addressed | HB 642 requires the Director of Agriculture to recommend locations for selling adult-use hemp, including any storage restrictions at retail sites. | Requires hemp cultivators to maintain a set distance from locations where medical or adult-use cannabis is grown, except if cannabis cultivation begins after hemp operations are established. Prohibits hemp processing in residences or on residential-zoned land. |
| Product and Safety Standards | Cannabinoid hemp product excludes items with over 0.5 mg of Delta-9 THC per serving, 2 mg per package, or any other THC. Sets rules for hemp byproduct production, storage, and disposal, along with hemp processing standards. | Not addressed | HB 642 requires the Director of Agriculture to recommend testing standards for adult-use hemp products. | Establishes production standards and manufacturing practices for hemp processing. |
| Testing Laboratory License | Not addressed | Not addressed | Not addressed | Not addressed |
| Labeling Requirements for Products | Sets standards for testing and labeling hemp and hemp products. | Not addressed | HB 642 requires the Director of Agriculture to recommend advertising restrictions and labeling requirements for adult-use hemp products. | Establishes standards for testing and labeling of hemp and hemp products. |
| Excise Tax | Not addressed | Not addressed | Not addressed | Not addressed |
| Non-compliance monitoring | Sets requirements and procedures for issuing, administering, and enforcing corrective action plans under this chapter. | Any enforcement agent of the Ohio investigative unit or any law enforcement officer may inspect any premises or location at which an adult-use hemp product is sold at retail without prior notice to the retailer. | HB 642 requires the Director of Agriculture to recommend enforcement mechanisms, including inspection authority for the Ohio Investigative Unit in the Department of Public Safety. | Sets procedures for issuing, renewing, and revoking hemp licenses, including a 10-year revocation for controlled substance felonies, with rights to hearings and corrective action plans. |
| Hemp Definitions | Provides specific definitions for hemp, cannabinoid hemp products, non-cannabinoid hemp products, floral hemp products, and topical hemp products. | Defines "adult-use hemp product" as a hemp product containing THC that has at least 2.5 mg of THC per serving, more than four servings per package, and a CBD to THC ratio of no more than 15:1 per package. | HB 642 requires the Director of Agriculture to recommend a definition of adult-use hemp products, covering all intoxicating forms, with THC restrictions based on serving size and package content. | Provides definitions for an intoxicating hemp product, hemp products, and non-cannabinoid hemp products. |
Additional Research
Over the past several decades, more than half of all U.S. states have legalized cannabis for adult and/or medical use, but it remains illegal at the federal level. The public health consequences of cannabis policy changes have not been comprehensively evaluated.
Therefore, the Centers for Disease Control and Prevention and the National Institutes of Health tasked the National Academies with reviewing cannabis and cannabinoid availability in the U.S., assessing regulatory frameworks for the industry with an emphasis on equity, and describing strengths and weaknesses of surveillance systems for cannabis.
The resulting report finds that there has been limited federal guidance to states regarding protecting public health, which has led to inconsistent protection across the states. The report recommends a strategy to minimize public health harms through stronger federal leadership, a robust research agenda, and more.
The Agriculture Improvement Act of 2018 (the “Farm Act”) sparked the proliferation of Intoxicating Hemp Derivatives throughout interstate commerce. Sales of these largely unregulated consumable products have swept the nation with sales revenue that rivals the combined revenue of all state-specific, regulated marijuana industries. Proponents of these mostly untested hemp-derived products see unburdened business opportunity. Opponents object to the perceived unfairness of these unregulated products in the face of marijuana’s continued federal illegality and strict state regulations. Against that backdrop, expected amendments to the Farm Act will likely address Intoxicating Hemp Derivatives, creating a moment of uncertainty for access to psychoactive cannabinoids, whether from hemp or marijuana. In this article, Benton Bodamer, DEPC adjunct professor of law, along with Benjamin Sobczak and Taylor MacDonald, explain the current state of affairs, discuss the possible implications of forthcoming federal policy decisions, and highlight the various interest groups lobbying for legislative action. Additionally, the authors argue that these new proposed regulations do not represent a solution to the federal government’s decades-old inability to safely and predictably allow access to the cannabis plant with reasonable and logical safeguards.