Future of delta-8 in question as lawmakers and hemp industry square off

This story is published as part of the series Highly Legal in partnership with The Examination, a nonprofit newsroom that investigates global health threats, and AL.com, PennLive and USA TODAY. Our team is continuing to report on new cannabis products and we want to hear from you. Share your experience or questions with us here.

Lawmakers are scrambling to rein in the sale of delta-8 and other intoxicating hemp products that are flooding parts of the United States where traditional marijuana remains illegal.

In May, a committee in the U.S. House of Representatives approved an amendment to a draft of a farm bill that would effectively close a loophole that has allowed for the proliferation of hemp products — including many that deliver a powerful high. 

But the fate of that legislation is in doubt, and states have been largely left on their own to grapple with an influx of intoxicating vapes, gummies, sodas and other hemp-infused products, even as concerns about quality and overdoses have mounted. 

In response, lawmakers in more than two dozen states have considered bills to ban delta-8 or impose age limits and other restrictions. At least six have adopted new laws in 2024 alone. On July 1, Tennessee, which banned delta-8 for those under 21 last year, will require manufacturers and sellers to register for a state license and consent to inspections and Wyoming will ban hemp products with THC or “psychoactive substances” outright. 

The hemp industry has said it supports more regulation, but it is fighting outright bans, which it claims will decimate an industry worth $28 billion, financially cripple hemp farmers and take away products some consumers have come to depend on for pain relief. 

Jonathan Miller of the U.S. Hemp Roundtable says the proposed amendment is equivalent to “throwing the baby out with the bathwater.”

The wave of new products stems from the Agricultural Improvement Act, also known as the farm bill, which legalized hemp, a close cousin of marijuana. The bill imposes strict limits on the amount of THC that plants can contain. 

In response, manufacturers found ways to greatly increase the potency of delta-8 and other psychoactive compounds that appear naturally, but in very low levels, and released a blizzard of new products. 

“This market has been created because manufacturers are arguing that they can manipulate these molecules and then claim it’s hemp,” said Eric Leas, assistant professor of public health at the University of California, San Diego who studies tobacco, cannabis, and psychedelic use. 

In April, an investigation by The Examination, AL.com, the Milwaukee Journal Sentinel and USA TODAY found that the hemp product industry operates in a regulatory gray zone, with little oversight or quality control, with consumers relying on vague wording on packaging and advice from smoke shop or gas station employees about what products to take, and what dosing is appropriate. 

The reporting found a sharp rise in reports to poison control centers involving delta-8 products, in particular. Close to a third involved children under six years old.  

Despite uncertainty about how hemp products are regulated, they have become increasingly popular. More than 160 people responded to a call-out from The Examination and publishing partners to share their experience with delta-8 or other hemp products. Some said they used hemp to manage pain, insomnia or arthritis. 

“I will continue to use the product to help with stress and for a little pleasure,” wrote John T. from Four Corners, Colorado. “But I will use small amounts... and infrequently.” 

Lawmakers looking to regulate hemp market at the state level

In April, the FDA told The Examination that its authority to oversee the hemp market is limited, despite repeatedly warning consumers about the dangers of consuming unregulated products. For now, the official regulatory response very much depends on location.

A dozen states have enacted outright bans on the sale of delta-8 and some other hemp products. Seven, including Arizona, have attempted to to regulate delta-8 within their legal marijuana markets. In almost two dozen, there are no clear regulations or bans in place. 

In Wisconsin, there isn’t even a minimum age for purchases.

Wisconsin Assembly Speaker Robin Vos told the Milwaukee Journal Sentinel he wants to ban delta-8 and similar products and plans to take up the issue in the next legislative session, early next year. 

In Alabama, lawmakers passed a law in 2023 imposing an age limit of 21 to buy delta-8 products. This followed two failed efforts to ban delta-8 and delta-10 – yet another hemp-derived intoxicant.

State Senator Arthur Orr wrote a ban into an amendment in 2021, but then “all heck broke loose,” he said in an interview with AL.com. Convenience store owners, the Alabama Cannabis Industry Association and people who use the products for pain pushed back and defeated the ban, he said.

In April, Texas Lt. Gov. Dan Patrick asked legislators to consider a ban on delta-8 and other intoxicating hemp products. The following month the state senate held a hearing to discuss how best to go about it. 

Texas is one of the states where marijuana remains illegal, but sales of delta-8 and other hemp derived products have soared. According to the Texas Tribune, the state is home to more than 7,000 registered consumable hemp retail spots. There won’t be any movement, at the earliest, until next year’s legislative session.

In Florida, a bill to ban the sale of delta-8 and other hemp-derived products was approved by the state senate unanimously. Governor Ron DeSantis vetoed the bill this month. CBS Miami reported that one hemp group spent over $150,000 on legislative lobbying during the first three months of the year, and the governor’s office was flooded with emails calling for him to veto the bill. In a veto letter, DeSantis called on legislators to reconsider the issue in the next legislative session and focus on quality control, retail sales, labeling, marketing and packaging.

As lawmakers deliberate, hemp manufacturers are producing more, and more powerful, products. They are extracting compounds like HHC, THC-P, and THC-JD that experts say can be found naturally in small quantities or produced synthetically. The FDA has called the newer compounds “a big human guinea pig experiment.” 

Architect of earlier farm bill said she did not predict flood of new products

The authors of the farm bill that led to all the new hemp products say finding creative ways to sell products that get people high was not their intention. 

Courtney Moran, an attorney and strategist for two Oregon-based hemp lobbying groups, worked with Sen. Ron Wyden, a Democrat from Oregon, and Sen. Mitch McConnell, a Kentucky Republican, to write the original legislation. In an interview with the Journal Sentinel, Moran said she “did not know” that hemp-derived intoxicants were scientifically possible. She said she first heard of delta-8 in 2020, two years after the passage of the bill.

“Could we have foreseen these intoxicating products? I didn’t,” she said. “I did not know about these other isomers and how they could be manufactured in the lab.” 

The recent amendment to the farm bill was introduced by Illinois Rep. Mary Miller, a Republican, who said she wanted to “close the loophole that has allowed drug-infused THC products like delta-8 to be sold to teenagers in packaging that looks like candy.”

The Miller amendment would outlaw the sale of any hemp derived products containing “any quantifiable amount” of THC. It would also ban “cannabinoids that are not capable of being naturally produced, were synthesized or manufactured outside of the plant.” 

In interviews, business owners in Wisconsin said they support regulation but are opposed to the contested Miller amendment. Rob Pero, owner of Canndigenous, a Wisconsin-based cannabis brand, and founder of the Indigenous Cannabis Industry Association has said it would end “90 to 95%” of Wisconsin’s hemp-based industry. 

“(Regulation) is something we’ve been asking for, but don’t get rid of it,” he said. 

Salem Kashou, co-owner of Kind Oasis, a CBD and THC shop in Milwaukee, also worries about damage to the industry.

“I think it would destroy the entire industry, take thousands of jobs, and hurt the end users who use these every day,” co-owner Salem Kashou said.

Pero, of Canndigenous, said it is time for states to act so that businesses don’t go under. He said if there is any silver lining to the amendment, it is that it might finally push state governments to put forward regulations.

Ashley Okwuosa is a reporter at The Examination on the public health beat. She can be reached at ashley@theexamination.org. Jordyn Noennig is a culture and lifestyle reporter with the Milwaukee Journal Sentinel, part of the USA TODAY Network. She can be reached at jordyn.noennig@jrn.com. Zoe Jaeger is an investigative intern with the Milwaukee Journal Sentinel. She can be reached at zjaeger@gannett.com. Amy Yurkanin is a senior reporter at Al.com covering health care and women’s issues. She can be reached at AYurkanin@al.com.