Law Enforcement Actions Against Hemp Intoxicants
Since late 2019, states have seen a significant increase in the popularity of intoxicants that are derived from hemp, many of which have appeared on store shelves in local retail vape and smoke shops, gas stations, and other retail establishments. The state law enforcement agencies that took action did so primarily along three lines: enforcing laws aimed at limiting hemp-derived intoxicants, utilizing the licensing system for cannabinoid intoxicants and enforcing against unlicensed businesses, and finally, enforcing state health and safety laws against those selling harmful products. In some states, these actions resulted in civil actions by hemp producers and retailers in response, as federal and state courts are left to interpret the law as it stands. Here is a summary of different state law enforcement responses.
California
On September 9, 2023, California Attorney General Ron Bonta filed actions against 9 businesses accused of selling hemp-synthesized intoxicants in the state. The state actions were based on two areas of California law. The first was Assembly Bill 45 which took effect in 2021 and prohibited the sale of intoxicants derived from hemp. Companies were also accused of providing beta-Myrcene, which the state considers to be a carcinogen, to consumers without a label in violation of Proposition 65 which went into effect in the same year.
Connecticut
In April of 2023, AG William Tong announced significant law enforcement action had been taken against several vape shops that were selling THC products illegally, often hemp-derived intoxicants. Of note – these operators clearly knew they were operating illegal, clandestine distribution operations, complete with fake panels and drawers to hide contraband from inspectors and law enforcement. More recently, the regulatory agency issued a warning against use of unregulated hemp intoxicants that are produced or sold outside the state’s regulated marijuana program.
Florida
On October 3, 2023, the Florida Attorney General announced that it had learned, following inspections by the the Department of Agriculture and Consumer Services, that several businesses were selling types of hemp-synthesized intoxicants that fell outside the state definition of hemp (THC-O, delta-9-THC-O and delta-8-THC-O). Because they were considered outside the definition of hemp, they were not permitted in food items, which could subject food establishments that could subject businesses to a fine of up to $5,000 per occurrence. The state Attorney General also considers them to be controlled substances, subjecting retail operations to criminal penalties.
Georgia
The district attorney in Gwinnett County initiated law enforcement against hemp intoxicants starting in November 2022 as a violation of the state’s controlled substances law. A challenge by hemp producers was dismissed on unrelated grounds, and enforcement continued. A new legal proceeding was initiated by hemp interests in response to ongoing enforcement, and the county’s authority to regulate hemp intoxicants is being challenged in state court. A determination in November found for the plaintiffs in the state appellate court, finding that delta-8 was not a controlled substance. An appeal is all but certain.
Indiana
In January of 2023, state Attorney General Todd Rokita issued guidance that hemp-synthesized intoxicants were considered controlled substances under state law. Indiana had, like many other states, adopted a law that allowed hemp products, including cannabinoid derivatives, and removed them from the state controlled substance act. Some counties moved to limit sales by notifying retail outlets of the guidance, but hemp producers brought suit to enjoin law enforcement from acting on the Attorney General’s guidance. The matter is currently being decided in federal court, with law enforcement actions muted (although not enjoined) in the meantime.
Maryland
Maryland legalized marijuana, and today draws a distinction between licensed and unlicensed operators. In July 2023, the Alcohol, Tobacco, and Cannabis Commission, issued a strong warning that delta-8, delta-9, delta-10, and other forms of THC sold without a license were unlawful and producers and sellers would be subject to criminal penalties including fines. The warning followed passage of a law to more clearly outlaw hemp-based intoxicants.
Nebraska
Nebraska has considered hemp-based intoxicants illegal since 2017. In August, 2023, six different local law enforcement agencies across southern Nebraska engaged in coordinated efforts to seize hemp-based intoxicants, overseen by the state Attorney General’s office. It does not appear to have resulted in criminal charges for owners or workers.
Pennsylvania
In the summer of 2023, Lancaster Country’s District Attorney announced to county hemp licensees that it considered hemp-derived intoxicants illegal. Law enforcement then visited 43 companies, some of which were hemp licensees, and seized products it considered illegal from 25 of them, with offenders facing misdemeanor and felony charges related to controlled substances manufacturing and possession. Part of the action resulted in civil litigation related to the legal status of hemp intoxicants. Blair County has also taken action against local retailers.
South Carolina
The South Carolina Attorney General issued an Opinion on October 4, 2021 declaring that delta-8 is an illegal substance. Some regional enforcement has begun, with letters sent by law enforcement to area retail locations selling delta-8 products in September, 2023. Previous similar announcements resulted in little action, however.
Virginia
On June 30, 2022, the Virginia Department of Agriculture and Consumer Services and Office of the Attorney General of Virginia announced that all products intended for human consumption must meet state food safety standards. According to its announcement, any chemically-synthesized cannabinoid infused in food items would be considered a food adulterant and any person manufacturing or selling chemically-synthesized cannabinoids as a food or beverage would been in violation of the Virginia Food and Drink Law. While somewhat effective, the market continued, and a measure passed by state lawmakers in 2023 made more clear the allowable types of products, and penalties for violations. By the summer of 2023, civil fines had been issued to multiple businesses operating in violation of state health and safety standards, ranging from $13,000 to $97,500. Representatives of the hemp industry have brought a federal action against the state, claiming that its efforts to regulate hemp-synthesized intoxicants are preempted by federal law.
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