July 2, 2024 / CBD, Food & Drink, Legal, Legislation, News, North America, Regulatory, USA
Intoxicating hemp products are being removed from the market in South Dakota, Louisiana, Iowa, and Nebraska as a result of recent legislative and legal developments.
South Dakota
In South Dakota, a federal judge denied a request to block the state’s new law banning products containing psychoactive hemp-derived substances, such as synthetic forms of THC sold as a substitute for marijuana. The law, signed by Gov. Kristi Noem in March, took effect yesterday and prohibits the production, sale, and distribution of “chemically modified or converted industrial hemp,” specifically banning delta-8 THC, delta-9 THC made from hemp, delta-10 THC, THC-O-acetate, HHC, THCP, and “any other THC isomer, analog, or derivative” of industrial hemp. Violations are classified as Class 2 misdemeanors.
The South Dakota law targets gummies, vape pens, pre-rolled joints, and smokable hemp flowers that contain intoxicating compounds, often referred to as “gas station weed,” “diet weed,” “fake weed,” and “marijuana light.” U.S. District Judge Eric C. Schulte ruled that the law does not improperly interfere with interstate commerce and that the state acted within its police powers to protect public health. The plaintiff in the case, Pierre-based retailer Hemp Quarters 605, is unlikely to succeed in challenging the law’s constitutionality, but can proceed with its lawsuit while the state Attorney General’s office may prosecute the company in the meantime.
Louisiana
In Louisiana, Gov. Jeff Landry signed House Bill 952, which forbids the sale of intoxicating hemp-derived products at gas stations and licensed alcohol retailers. The ban includes hemp flowers that contain THCA, a substance that turns into psychoactive delta-9 THC when smoked. While hemp-derived THC mixed into beverages is legal, such products cannot be packaged in containers smaller than 12 ounces. The new statute also prohibits the addition of synthetic hemp compounds when beverages are served in restaurants or bars and bans packaging or marketing materials that might appeal to children.
The law sets the total amount of all forms of THC allowed in consumable hemp products at 5 milligrams per serving and no more than 40 milligrams per package, amounts unlikely to produce psychoactive effects. Products must be submitted to the state health department for approval and analysis.
Iowa
In Iowa, a new law took effect yesterday banning intoxicating hemp compounds and dried hemp flowers intended to be smoked or inhaled. The law also prohibits alcoholic beverages containing THC, including any isomers, derivatives, or analogs of THC, whether naturally occurring or synthesized. Non-psychoactive hemp-derived CBD products are restricted to those 21 years of age and older, and consumable hemp products are limited to less than 4 milligrams of THC per serving and 10 milligrams per package. The law creates civil and criminal penalties for businesses that sell consumable hemp without registering with the state and allows the state Health and Human Services Department to confiscate non-compliant products from retailers.
Two hemp beverage companies in Iowa have filed a federal lawsuit challenging the restrictions on THC content in hemp consumables, and a judge may consider blocking the law.
Nebraska
In Nebraska, the attorney general announced settlements with three vape shop owners who violated consumer protection laws on labeling and deceptive advertising. Attorney General Mike Hilgers emphasized the potential health risks of solvents and substances used to make “high”-producing hemp substances. The three parties agreed to stop selling products containing hemp intoxicants and to turn over unsold inventory for destruction. Hilgers urged other retailers his office has sued to negotiate settlements.
The state has filed 11 lawsuits against vape shops selling products containing delta-8, the most popular of the synthetic, hemp-derived intoxicants.
Federal Rules Lacking
In the absence of federal laws or rules, states throughout the U.S. are working to manage the market for products containing hemp intoxicants, sold in convenience stores, bodegas, CBD shops online, and other retail outlets in the form of gummies, edibles, vapes, and drinks. Most of the psychoactive substances are made by putting hemp-derived CBD through a chemical process in the lab.
Recreational and medical marijuana stakeholders are also lobbying against these products, arguing they represent unfair competition because they are not burdened by the same rules and fees in states with legal marijuana markets.
Congress has an opportunity to clarify the legality of intoxicating hemp products by amending the next U.S. Farm Bill, delayed from last year. Proposed provisions floated in May would close the federal loophole that legalized the substances, but a new Farm Bill likely will not emerge until 2025. In the meantime, states are left to protect consumers from unregulated products.
