DeWine’s emergency order sought to ban intoxicating hemp for at least 90 days in an effort to get the General Assembly to act. But a Franklin County judge blocked DeWine’s order hours after it went into effect Tuesday, in response to a lawsuit filed by retailers including Fumee Smoke and Vape in West Chester Twp.
That leaves intoxicating hemp legal for now, though its long-term fate is uncertain, along with the future of numerous businesses that have popped up in recent years and say they derive a substantial share of their business from THC hemp products.
But what exactly is intoxicating hemp, and how is it different than products that were legalized with the passage of the Issue 2 recreational marijuana measure? Here’s what you need to know:
Credit: Bryant Billing
Credit: Bryant Billing
What is intoxicating hemp?
Broadly, an intoxicating hemp product is a hemp-derived product that contains cannabinoids in concentrations high enough to produce psychoactive effects when consumed, according to the Moritz College of Law’s Drug Policy Enforcement Center.
The bulk of today’s hemp industry revenue comes from the plant’s production of chemical compounds like cannabigerol or cannabidiol, also called CBG and CBD, respectively. These substances are not psychoactive and are often used in products geared toward pain management.
CBD and CBG are used as additives to many products, but they’re also used to extract psychoactive substances like Delta-8 THC from hemp.
Delta-8 is used in the production of many intoxicating products like drinks, edibles and vapes. All Delta-8 THC products are manufactured by some form of chemical conversion.
Other products state they contain a certain amount of another cannabinoid: tetrahydrocannabinolic acid, or THCA.
THCA converts to Delta-9 THC, the most prevalent cannabinoid in marijuana, when it is combusted or vaporized. This makes its THC content more potent than what is present in its dry weight — somewhat of a legal loophole.
“It’s not psychoactive, it meets all the requirements of hemp law, until it’s combusted,” said Dexter Ridgway, research associate at the Drug Policy Enforcement Center. “But it’s a lower level. You’re not going to have the same effects as a standard Delta-9.”
Credit: Bryant Billing
Credit: Bryant Billing
How does intoxicating hemp differ from recreational marijuana?
Although marijuana flower and hemp flower look similar on the outside, they differ in a few ways in terms of their contents.
“If you put marijuana and hemp together on a table, they look pretty much the same,” Ridgway said. “It’s really hard to determine by physical appearance.”
The cannabis plant contains more than 100 cannabinoids — chemical compounds that can have either psychoactive or non-psychoactive effects.
Hemp has lower levels of Delta-9 THC than marijuana plants. Under federal law, hemp products may be sold if they contain no more than 0.3% Delta-9 THC on a dry weight basis. But they can contain numerous other cannabinoids that have an intoxicating effect.
Marijuana (with high Delta-9 THC) and hemp (with Delta-8 or THCA) also significantly differ in how they are viewed under state and federal law.
Marijuana can only be sold in a state-licensed dispensary, where consumers also pay an extra 10% excise tax. This and other legal requirements for recreational marijuana can make hemp considerably cheaper.
Ohio doesn’t have an age requirement to buy hemp products since they’re, by dry weight, 0.3% or less of Delta-9 THC. That’s why hemp products can be sold almost anywhere in the state, and the state’s government has no jurisdiction over them.
This also means intoxicating hemp products have different testing expectations than marijuana that an adult age 21 and up can buy at their local dispensary.
Hemp business leaders say they buy products with test results from reputable laboratories and card customers to verify their ages.
However, with some products, testing results included in QR codes on their packaging can be years old. Testing results may also only represent a review of an entire batch of substances, not every singular product, Ridgway said.
Credit: Bryant Billing
Credit: Bryant Billing
What are local businesses saying?
Smoke shops, vape shops, gas stations, convenience stores, liquor stores, beer outlets and other establishments across the region had empty shelves on Tuesday after DeWine’s 90-day ban on intoxicating hemp-derived THC products briefly went into effect.
Business owners and managers said they fear a temporary ban and future restrictions could lead to job losses, store closures and consumer outrage, especially if these products were to be removed from the market permanently.
Jo Day, assistant at VIP Smoke Shop in Trotwood, said hemp THC products are among the store’s top-sellers, and many customers use those products for pain relief or as an alternative to alcohol.
Some local smoke shops and bars say hemp accounts for nearly a third of their sales. In a lawsuit challenging DeWine’s ban, some Ohio retailers estimated such a ban could put 20,000 Ohioans out of work and said hemp has a nearly $3 billion economic impact in Ohio.
“This kind of an industry doesn’t happen by accident — it has supporters, backers," said Raychel Loney, general manager of the Troll Pub at the Wheelhouse in Dayton, which sells hemp-infused beverages. “Ohio’s economy is boosted by these kind of innovative drinks and stuff like that.”
Some gas stations and other shops had resumed sales of hemp THC by Wednesday morning. A sign outside a gas station in Dayton advertised 50% off its hemp products for the next two weeks.
How long has hemp been legal?
The 2018 Farm Bill removed legal barriers to industrial hemp production by removing hemp from the federal Controlled Substances Act.
Ohio enacted Senate Bill 57 in July 2019 to legalize the production of hemp in Ohio, and in December that year, Ohio received one of the first hemp production approvals from the national Department of Agriculture.
Because the federal government has not regulated this part of the hemp industry, the creation and sale of intoxicating hemp products exist in a legal limbo under federal law. Some states have passed age-restricting rules and other kinds of regulations on intoxicating hemp within their borders, but Ohio has largely left the industry untouched.
What were DeWine’s executive orders aiming to do?
DeWine penned two executive orders on hemp. The first order gave the Ohio Department of Agriculture the authority to redefine the state’s legal definition of hemp products to exclude intoxicating hemp.
The other order created an “adulterated consumer emergency,” which asserted that intoxicating hemp products are effectively tampered with and are now dangerous. This required all retailers in the state to get qualifying products off their shelves, and those who were not in compliance with the order could face daily $500 fines.
DeWine’s orders asserted an “immediate need to address the dangers of intoxicating hemp and its serious threat to public health and safety,” evidenced by “hundreds” of calls fielded by Ohio Poison Control over the last several years regarding minors and intoxicating hemp poisoning.
At his press conference, DeWine had on display three intoxicating hemp products found in convenience stores that mimic the packaging or branding of Sour Patch Kids, Nerds Gummy Clusters and Gushers.
“They do it on purpose,” DeWine said. “They do it to attract kids.”
Does DeWine have authority over intoxicating hemp?
Questions over whether DeWine has the executive authority to regulate intoxicating hemp sales stem back to his own admission, in a January 2024 press conference, that he’d need the legislature to take action in order to get any significant safeguards into law.
Although gubernatorial powers vary by state and are determined by their constitutions, governors can typically issue executive orders to trigger emergency powers, establish advisory committees, and address regulatory reform, according to the National Governors Association.
DeWine’s executive orders came two years after the governor urged the Ohio General Assembly to pass reforms on intoxicating hemp products.
“We believe we have this authority to do this, and I’m not going to sit back and not do it,” DeWine said during a recent press conference. “I went back to my lawyers and I said this problem continues to get worse. It is absolutely absurd that a 14-year-old or 13-year-old can walk into the store and buy this stuff. It’s never what anybody intended when the hemp law was passed.”
But the group of retailers who challenged the orders in court assert that DeWine’s attempt to regulate intoxicating hemp went outside his scope of power
A Franklin County Judge issued a ruling Tuesday to temporarily block the governor’s executive orders banning the sale of intoxicating hemp in the state of Ohio.
What about possessing intoxicating hemp?
Possession of intoxicating hemp was not included in DeWine’s executive orders, which banned the sale of the products.
The judge’s order put a 14-day pause on the executive orders. For now, intoxicating hemp sales can continue. But it’s unclear what action will come after the pause.
Credit: Bryant Billing
Credit: Bryant Billing
Where does the legislature stand?
There have been plenty of legislative proposals to regulate intoxicating hemp. The measure closest to the finish line is Senate Bill 86, which proposes moving all intoxicating hemp products to licensed recreational marijuana dispensaries. The bill passed the Senate with unanimous support from both Republicans and Democrats, but it has yet to be addressed in the House.
In the House, two measures have gotten considerable play: House Bill 160, which would move intoxicating hemp products to dispensaries and tweak the state’s recreational cannabis laws, and House Bill 198, which would regulate the production, sale and distribution of intoxicating hemp products.
Both of the House’s proposals have ultimately, however, stalled in committee.
House Speaker Matt Huffman, R-Lima, told reporters Wednesday that DeWine’s ban — and to a lesser extent the court decision blocking the ban — will likely spur lawmakers to pass a law that provides more clarity to the situation.
“I’m confident we’re going to get something done here in the next few weeks,” Huffman said.
He said the House has not yet passed a bill due to splits in the GOP caucus. Some lawmakers want intoxicating hemp to be regulated in the same way as recreational marijuana; others want hemp regulated less strictly than recreational marijuana; and a third contingent wants to prohibit intoxicating hemp products altogether.
House Minority Leader Dani Isaacoshn, D-Cincinnati, has told reporters that he can’t quite square why the legislature has been unable to pass regulations.
“We already know how to do it. We do it for tobacco, we do it for alcohol,” he said Wednesday. “…There is clearly an opportunity for a bipartisan compromise here.”
Marijuana and hemp: Understanding the vocabulary
Although marijuana and hemp are both considered cannabis, they differ from one another both physically and legally. Here are some terms it helps to understand.
Cannabinoid: A group of chemical compounds found in the cannabis plant.
THC: Short for Tetrahydrocannabinol, THC is the most common cannabinoid. Its psychoactive tendencies produce the “high.” Delta-9 THC is the most common cannabinoid in marijuana.
CBD (cannabidiol): The second most prevalent active ingredient in cannabis plants. 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. It is not psychoactive.
Delta-8 THC: A psychoactive cannabinoid, it 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 into Delta-8. Consumer products with Delta-8 include edibles, drinks, tinctures, vapes and more.
THCA (tetrahydrocannabinolic acid): This occurs naturally in cannabis plants and is a precursor of THC. THCA does not produce a high unless combusted 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.
Source: Drug Policy Enforcement Center
