Ohio Hemp Reclassification: Legal Battle and Regulatory Changes

Executive Summary

Ohio is asking the U.S. Court of Appeals for the Sixth Circuit to allow the state to proceed with reclassifying hemp products containing intoxicating cannabinoids as controlled substances, marking a pivotal moment in the national debate over hemp-derived intoxicants. The state's appeal, filed in August 2026, seeks to overturn a lower court decision that blocked Ohio's attempt to regulate products containing delta-8 THC, THCA, and other hemp-derived cannabinoids that produce psychoactive effects similar to traditional marijuana. This legal battle sits at the intersection of federal hemp law, state regulatory authority, and a multi-billion-dollar industry that has flourished in the regulatory gaps created by the 2018 Farm Bill. The outcome will determine whether Ohio can close what state officials characterize as a loophole allowing intoxicating products to be sold without the safety testing, age restrictions, and licensing requirements that apply to adult-use marijuana dispensaries. The case has drawn attention from hemp industry advocates, cannabis operators, public health officials, and lawmakers across the country watching to see whether states retain the authority to regulate hemp-derived intoxicants more strictly than the federal definition allows.

Why This Matters

The Ohio hemp reclassification dispute affects thousands of retailers, millions of consumers, and the fundamental question of whether states can regulate intoxicating hemp products differently than non-intoxicating industrial hemp. According to industry estimates, the hemp-derived cannabinoid market generated approximately $2.8 billion in U.S. sales in 2025, with Ohio representing a significant portion of that market. The state is home to more than 1,200 retail locations selling hemp-derived products, including gas stations, smoke shops, and dedicated CBD stores that began offering intoxicating products after the 2018 Farm Bill federally legalized hemp. For consumers, the stakes involve product safety and access. Hemp-derived intoxicants currently sold in Ohio undergo no mandatory testing for potency, pesticides, heavy metals, or microbial contamination—unlike products sold through Ohio's regulated marijuana dispensaries. Public health advocates point to emergency room visits involving delta-8 THC products, particularly among minors who can often purchase these products without age verification. For the hemp industry, Ohio's reclassification represents an existential threat to business models built on selling intoxicating cannabinoids outside the state's marijuana regulatory framework. Companies have invested millions in manufacturing, distribution, and retail infrastructure based on the understanding that hemp and its derivatives remain legal under both federal and state law as long as the delta-9 THC concentration stays below 0.3% by dry weight. For Ohio's licensed marijuana operators, the dispute involves competitive fairness. These businesses paid substantial licensing fees, invested in compliance infrastructure, and operate under strict regulations while competing against hemp retailers selling similar intoxicating products with minimal oversight. The state's marijuana market generated $428 million in sales in 2025, with operators arguing that untested hemp products undercut their regulated offerings. The legal precedent extends beyond Ohio. At least 15 states have attempted to restrict or ban intoxicating hemp-derived cannabinoids since 2021, with varying degrees of success. The Sixth Circuit's decision will provide guidance for Kentucky, Michigan, and Tennessee—the other states in the circuit—and influence legal strategies nationwide.

Background and History

The 2018 Farm Bill and Hemp Legalization

The modern hemp-derived cannabinoid industry traces its origin to the Agriculture Improvement Act of 2018, commonly known as the 2018 Farm Bill, which President Donald Trump signed into law on December 20, 2018. Section 10113 of that legislation amended the Controlled Substances Act to remove hemp—defined as cannabis containing no more than 0.3% delta-9 THC on a dry weight basis—from Schedule I. The law defined hemp under 7 U.S.C. § 1639o and explicitly stated that hemp and its derivatives, extracts, and cannabinoids would no longer be controlled substances under 21 U.S.C. § 812. The 0.3% threshold originated from a 1976 taxonomic paper by Canadian plant scientists Ernest Small and Arthur Cronquist, who proposed the concentration as a way to distinguish fiber and seed cultivars from drug cultivars. The threshold was never intended as a bright line for intoxication potential, but it became federal law nonetheless. Congress intended the 2018 Farm Bill to support American farmers by legalizing industrial hemp cultivation for fiber, grain, and CBD extraction. The legislative history shows minimal discussion of intoxicating cannabinoids beyond delta-9 THC. Lawmakers focused on CBD, the non-intoxicating cannabinoid that had gained popularity for purported wellness benefits.

The Rise of Delta-8 THC and Hemp-Derived Intoxicants

Within two years of the 2018 Farm Bill's passage, chemists and entrepreneurs discovered they could convert CBD extracted from legal hemp into delta-8 THC and other intoxicating cannabinoids through chemical processes. Delta-8 THC occurs naturally in cannabis plants in trace amounts—typically less than 0.1%—but can be synthesized from CBD through isomerization using acids, heat, and solvents. The first delta-8 THC products appeared in retail stores in late 2019 and early 2020. By mid-2021, the market had exploded. Manufacturers also began producing THCA flower—cannabis flower high in tetrahydrocannabinolic acid, the non-intoxicating precursor to delta-9 THC that converts to delta-9 when heated—and marketing it as legal hemp because THCA itself is not delta-9 THC. The industry's legal theory rested on a literal reading of the 2018 Farm Bill: if the final product contained less than 0.3% delta-9 THC by dry weight, it qualified as hemp regardless of other cannabinoid content or intoxicating effects. Delta-8 THC products typically contained 10-30% delta-8 THC by weight while maintaining delta-9 THC below the 0.3% threshold. The Drug Enforcement Administration issued an Interim Final Rule on August 21, 2020, stating that "all synthetically derived tetrahydrocannabinols remain schedule I controlled substances" under 21 U.S.C. § 812(c), Schedule I(c)(17). The DEA argued that delta-8 THC produced through chemical conversion of CBD qualified as synthetic. The hemp industry countered that the cannabinoid was naturally occurring and merely concentrated through extraction, not synthesized.

Ohio's Initial Hemp Implementation

Ohio implemented its hemp program under House Bill 57, which Governor Mike DeWine signed on July 30, 2019, bringing state law into compliance with the 2018 Farm Bill. The legislation, codified at Ohio Revised Code § 928.01 et seq., established the Ohio Department of Agriculture as the regulatory authority for hemp cultivation and processing. The law adopted the federal definition of hemp, including the 0.3% delta-9 THC threshold. Ohio's hemp program launched in 2020, licensing farmers to grow hemp and processors to extract cannabinoids. The state focused regulatory attention on ensuring delta-9 THC compliance and tracking hemp from seed to sale. The Department of Agriculture conducted no testing for delta-8 THC, THCA, or other cannabinoids beyond delta-9 THC. Simultaneously, Ohio was implementing adult-use marijuana legalization following the passage of Issue 2 in November 2023. The citizen-initiated measure, which voters approved 57% to 43%, legalized possession of up to 2.5 ounces of marijuana for adults 21 and older and directed the state to establish a regulated retail market. The Division of Cannabis Control, operating under the Ohio Department of Commerce, began licensing dispensaries in 2024.

The Regulatory Collision

By late 2024, Ohio lawmakers and regulators recognized that intoxicating hemp products were being sold alongside CBD tinctures and topicals with no age restrictions, potency limits, or safety testing. Gas stations and convenience stores throughout the state sold delta-8 THC vape cartridges, THCA flower, and edibles containing hemp-derived cannabinoids. Media reports documented minors purchasing these products, and emergency departments reported cases of adverse reactions. The Ohio Department of Commerce, which regulates the state's marijuana program, estimated that hemp-derived intoxicants were capturing 15-20% of the total cannabinoid market in the state. Licensed marijuana dispensaries complained that they faced strict testing requirements, inventory tracking, and substantial taxes while competing against hemp retailers operating with minimal oversight. In January 2025, Ohio Attorney General Dave Yost issued a legal opinion stating that intoxicating hemp-derived cannabinoids could be regulated as controlled substances under state law despite their federal hemp status. The opinion argued that Ohio retained authority under the Tenth Amendment to regulate substances within its borders more strictly than federal law required.

Senate Bill 326 and Administrative Reclassification

The Ohio General Assembly considered Senate Bill 326 in early 2025, legislation that would have explicitly classified delta-8 THC, delta-10 THC, THCP, HHC, and THCA as Schedule I controlled substances under Ohio Revised Code § 3719.41. The bill passed the Senate 24-8 on March 12, 2025, but stalled in the House amid lobbying from hemp industry groups and small business owners who argued the measure would destroy their livelihoods. With legislative action uncertain, the Ohio Board of Pharmacy moved to reclassify intoxicating hemp cannabinoids through its administrative rulemaking authority. On June 15, 2025, the Board published a notice of proposed rulemaking that would add "any tetrahydrocannabinol other than delta-9 tetrahydrocannabinol derived from hemp" and "tetrahydrocannabinolic acid (THCA)" to Schedule I. The Board received more than 3,400 public comments during the comment period, with hemp industry representatives, small business owners, and consumers opposing the rule and law enforcement, public health officials, and marijuana operators supporting it. On September 3, 2025, the Board voted 7-2 to adopt the rule, with an effective date of October 15, 2025.

Legal Challenge and Preliminary Injunction

On September 20, 2025, a coalition of hemp businesses and industry trade groups filed suit in the U.S. District Court for the Southern District of Ohio, challenging the Board of Pharmacy's reclassification rule. The plaintiffs included Ohio Hemp Processors Association, multiple retail stores, and hemp product manufacturers. They argued that the rule conflicted with the 2018 Farm Bill's definition of hemp, violated the Supremacy Clause of the U.S. Constitution, and exceeded the Board's statutory authority. The plaintiffs filed a motion for a preliminary injunction to block the rule from taking effect. On October 10, 2025, U.S. District Judge Sarah Morrison granted the preliminary injunction, finding that the plaintiffs had demonstrated a likelihood of success on their Supremacy Clause claim. Judge Morrison's 42-page opinion concluded that Ohio's reclassification would create "an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" in legalizing hemp. The court found that Congress intended to legalize hemp and all its derivatives, extracts, and cannabinoids without qualification. Judge Morrison wrote that allowing states to reclassify specific hemp-derived cannabinoids as controlled substances would "effectively nullify the 2018 Farm Bill's hemp legalization" and create a patchwork of state regulations that would burden interstate commerce in hemp products. The preliminary injunction prevented the Board of Pharmacy's rule from taking effect, allowing hemp retailers to continue selling delta-8 THC, THCA, and other intoxicating cannabinoids. The state immediately filed a notice of appeal to the Sixth Circuit.

Key Players

Ohio Board of Pharmacy

The Ohio Board of Pharmacy serves as the state's primary regulatory authority for controlled substances scheduling under Ohio Revised Code Chapter 3719. The Board consists of 11 members appointed by the governor, including pharmacists, physicians, and public members. Executive Director Cameron McNamee has led the agency's efforts to address intoxicating hemp products, testifying before legislative committees about the public health risks of unregulated cannabinoids. The Board maintains authority to add, delete, or reschedule substances through administrative rulemaking, subject to review by the Joint Committee on Agency Rule Review.

Ohio Attorney General Dave Yost

Attorney General Dave Yost, a Republican elected in 2018 and re-elected in 2022, has been a vocal advocate for restricting intoxicating hemp products. His office issued the January 2025 legal opinion supporting state authority to regulate hemp-derived cannabinoids and is defending the Board of Pharmacy's reclassification rule in federal court. Yost has characterized hemp-derived intoxicants as "gas station weed" that circumvents voter-approved marijuana regulations. His office is handling the appeal to the Sixth Circuit.

Ohio Hemp Processors Association

The Ohio Hemp Processors Association represents approximately 80 hemp cultivation, processing, and retail businesses across the state. The trade group, formed in 2020, serves as lead plaintiff in the federal lawsuit challenging the reclassification rule. Executive Director Jennifer Hayes has argued that the rule would eliminate jobs and force law-abiding businesses to close. The association maintains that hemp-derived cannabinoids are legal under federal law and that Ohio cannot unilaterally reclassify them.

Ohio Division of Cannabis Control

The Division of Cannabis Control, operating within the Ohio Department of Commerce, oversees the state's medical and adult-use marijuana programs. Superintendent James Canepa has expressed support for regulating intoxicating hemp products through the same framework that applies to marijuana dispensaries. The Division has documented complaints from licensed marijuana operators about unfair competition from unregulated hemp retailers. The agency has not taken a formal position in the federal litigation but has provided data to support the state's arguments about market disruption.

U.S. Hemp Roundtable

The U.S. Hemp Roundtable, a national trade association representing hemp farmers and businesses, filed an amicus brief supporting the Ohio hemp industry's position. The organization argues that state-level restrictions on hemp-derived cannabinoids undermine the 2018 Farm Bill's purpose and create barriers to interstate commerce. General Counsel Jonathan Miller, former Kentucky Attorney General, has been a prominent voice arguing that Congress legalized hemp without carve-outs for specific cannabinoids.

Smart Approaches to Marijuana (SAM)

Smart Approaches to Marijuana, a national organization opposing marijuana legalization and advocating for stricter cannabis regulations, filed an amicus brief supporting Ohio's reclassification authority. The group argues that intoxicating hemp products pose public health risks, particularly to youth, and that states must retain authority to regulate psychoactive substances within their borders. SAM has supported similar regulatory efforts in other states.

Legal and Regulatory Framework

Federal Hemp Law: The 2018 Farm Bill

The controlling federal statute is the Agriculture Improvement Act of 2018, Public Law 115-334, which amended the Controlled Substances Act at 21 U.S.C. § 802(16) to exclude hemp from the definition of marijuana. The law defines hemp as "the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis." This definition appears in 7 U.S.C. § 1639o and applies across federal law. The statute explicitly states that hemp is not a controlled substance under 21 U.S.C. § 812 and that no federal law restricts the interstate transportation or sale of hemp or hemp products. The U.S. Department of Agriculture published final regulations for hemp production on January 19, 2021, codified at 7 C.F.R. Part 990. These regulations establish testing protocols, sampling procedures, and compliance requirements focused exclusively on delta-9 THC concentration. The USDA regulations do not address delta-8 THC, THCA, or other cannabinoids.

DEA Position on Synthetically Derived Cannabinoids

The Drug Enforcement Administration maintains that synthetically derived tetrahydrocannabinols remain Schedule I controlled substances under 21 U.S.C. § 812(c), Schedule I(c)(17), regardless of their source material. The DEA's August 21, 2020 Interim Final Rule states: "For synthetically derived tetrahydrocannabinols, the concentration of Δ9-THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinols remain schedule I controlled substances." The DEA has not taken enforcement action against delta-8 THC manufacturers or retailers, creating regulatory uncertainty. The agency's position conflicts with the hemp industry's interpretation that cannabinoids derived from legal hemp through extraction and isomerization remain legal hemp derivatives under the 2018 Farm Bill.

Supremacy Clause and Preemption Doctrine

The central legal question in the Ohio litigation involves the Supremacy Clause of the U.S. Constitution, Article VI, Clause 2, which establishes that federal law is "the supreme Law of the Land." Federal law preempts state law when Congress explicitly preempts state regulation, when federal regulation is so comprehensive that it occupies the field, or when state law conflicts with federal law. The hemp industry argues that the 2018 Farm Bill's comprehensive definition of hemp and explicit legalization of all hemp derivatives preempts state attempts to reclassify specific hemp-derived cannabinoids. The industry points to the statute's language that "no Federal law... shall prohibit the interstate commerce of hemp" as evidence of Congress's intent to establish uniform national policy. Ohio argues that the 2018 Farm Bill does not preempt state authority to regulate intoxicating substances under the Tenth Amendment's reservation of police powers to states. The state contends that Congress legalized hemp for agricultural and industrial purposes, not to create a parallel market for intoxicating products that circumvent state marijuana laws.

Ohio Controlled Substances Law

Ohio's controlled substances framework appears in Ohio Revised Code Chapter 3719, which establishes five schedules of controlled substances mirroring the federal Controlled Substances Act. Schedule I, defined in Ohio Revised Code § 3719.41, includes substances with high potential for abuse, no accepted medical use, and lack of accepted safety for use under medical supervision. The Board of Pharmacy possesses authority under Ohio Revised Code § 4729.041 to adopt rules adding, deleting, or rescheduling substances. The statute requires the Board to consider eight factors, including the substance's actual or relative potential for abuse, scientific evidence of pharmacological effect, and whether the substance is an immediate precursor of a controlled substance. Ohio's hemp law, Ohio Revised Code § 928.01 et seq., adopts the federal definition of hemp and explicitly states that hemp is not marijuana or a controlled substance under state law. This creates a statutory tension: hemp and its derivatives are legal under Chapter 928, but the Board of Pharmacy claims authority under Chapter 3719 to schedule specific hemp-derived cannabinoids as controlled substances.

State-by-State Breakdown of Hemp-Derived Cannabinoid Regulation

At least 22 states have enacted restrictions on intoxicating hemp-derived cannabinoids since 2021, creating a complex patchwork of regulations that varies significantly by jurisdiction.

States with Comprehensive Bans

Alaska, Colorado, Delaware, Idaho, Montana, New York, Oregon, Rhode Island, Vermont, and Washington have effectively banned delta-8 THC and similar intoxicating hemp-derived cannabinoids. These states either explicitly scheduled the substances as controlled substances or interpreted their existing marijuana laws to encompass all forms of THC regardless of source. Colorado took action in July 2021, with the Department of Revenue ruling that delta-8 THC and other intoxicating cannabinoids must be sold only through licensed marijuana dispensaries. New York banned hemp-derived cannabinoids in October 2021, directing all intoxicating cannabis products into the state's regulated marijuana program.

States with Age Restrictions and Testing Requirements

Arkansas, California, Connecticut, Kentucky, Louisiana, Minnesota, Nevada, and Virginia have implemented regulatory frameworks that allow hemp-derived cannabinoids but impose age restrictions, testing requirements, and labeling standards. California's Assembly Bill 45, effective January 1, 2026, requires all hemp products containing detectable amounts of THC to be sold only to adults 21 and older, undergo testing for contaminants and potency, and be sold only through licensed retailers. Kentucky's House Bill 544, enacted in March 2023, established a 21-and-older age restriction, 50mg serving size limit for edibles, and mandatory testing for hemp-derived cannabinoid products.

States with Pending Legislation or Litigation

Florida, Georgia, North Carolina, Tennessee, and Texas are currently addressing hemp-derived cannabinoids through pending legislation or ongoing legal disputes. Florida's legislature considered multiple bills in 2025 to regulate or ban delta-8 THC but has not enacted comprehensive legislation. Texas has seen conflicting court decisions, with some courts ruling that delta-8 THC is legal hemp and others finding it to be a controlled substance. North Carolina's hemp industry has operated with minimal state restrictions, but legislation introduced in 2026 would impose testing and age requirements.

Ohio's Position Among Midwest States

Ohio's regulatory approach falls between the permissive stance of neighboring Indiana and the restrictive framework of Michigan. Indiana has not restricted hemp-derived cannabinoids, allowing a robust market to develop with minimal state oversight. Michigan requires all intoxicating cannabinoids, regardless of source, to be sold through licensed marijuana provisioning centers, effectively banning hemp-derived intoxicants from general retail. The Sixth Circuit's decision in the Ohio case will directly affect Kentucky, Michigan, and Tennessee, the other states in the circuit.

Market and Business Implications

Hemp Industry Economic Impact

The intoxicating hemp-derived cannabinoid market represents approximately $2.8 billion in annual U.S. sales, with Ohio accounting for an estimated $180-220 million of that total. The market grew from virtually nothing in 2019 to its current size in less than six years, driven by consumer demand for legal intoxicating products and retailers' ability to sell them without marijuana licensing costs. Ohio is home to approximately 1,200 retail locations selling hemp-derived cannabinoid products, including national chains like Circle K and independent smoke shops. The state has 47 licensed hemp processors and 312 registered hemp cultivators, according to Ohio Department of Agriculture data from December 2025. Many processors shifted from CBD extraction to delta-8 THC production as the intoxicating cannabinoid market proved more profitable. Wholesale pricing for delta-8 THC distillate ranged from $800 to $1,400 per kilogram in Ohio in 2025, compared to $3,500 to $5,500 per kilogram for marijuana-derived delta-9 THC distillate sold to licensed processors. The price differential reflects the lack of regulatory compliance costs, testing requirements, and taxes on hemp products.

Impact on Licensed Marijuana Operators

Ohio's licensed marijuana dispensaries generated $428 million in adult-use sales in 2025, below initial projections of $550-600 million that did not account for hemp competition. Dispensary operators pay a 10% excise tax on sales, invest $50,000-75,000 in initial testing and compliance infrastructure, and face ongoing costs for inventory tracking, security, and regulatory compliance. Licensed operators argue that hemp-derived intoxicants create unfair competition by offering similar products without regulatory costs. A survey conducted by the Ohio Cannabis Coalition in August 2025 found that 68% of licensed dispensaries reported losing customers to hemp retailers, with the average dispensary estimating a 12-18% revenue impact. The competitive dynamic affects product categories differently. Hemp-derived THCA flower directly competes with marijuana flower, as both produce similar effects when smoked or vaporized. Delta-8 THC vape cartridges compete with delta-9 THC vapes. Edibles markets show less overlap, as hemp-derived edibles often contain higher doses and less consistent potency than regulated marijuana edibles.

Multi-State Operator Considerations

Multi-state operators with Ohio licenses have advocated for hemp restrictions while simultaneously exploring hemp-derived product lines in states where they lack marijuana licenses. Cresco Labs, Curaleaf, and Verano Holdings all operate dispensaries in Ohio and have supported regulatory efforts to restrict hemp-derived intoxicants. However, these same companies have invested in hemp-derived cannabinoid brands for distribution in states without adult-use marijuana programs. The strategic calculation reflects the regulatory arbitrage opportunity: hemp products can be sold across state lines and through conventional retail channels without marijuana licensing costs, but only if states do not restrict them. MSOs face a dilemma between protecting their regulated marijuana markets and capitalizing on hemp opportunities.

Small Business and Employment Effects

The Ohio hemp industry employs an estimated 3,800-4,200 people in cultivation, processing, retail, and ancillary services, according to industry estimates. Many of these businesses are small, independently owned operations that entered the market specifically to sell hemp-derived cannabinoids. The average hemp retail store employs 3-5 people, while processors employ 10-30. If Ohio's reclassification takes effect, most hemp retailers would need to close or pivot to non-intoxicating products. Few have the capital or ability to obtain marijuana dispensary licenses, which require substantial financial resources, background checks, and compliance infrastructure. The Board of Pharmacy estimated that 70-80% of current hemp retailers would exit the intoxicating cannabinoid market if the rule is upheld.

Investment and Capital Market Response

Venture capital and private equity investment in hemp-derived cannabinoid companies declined 43% in 2025 compared to 2024, reflecting regulatory uncertainty. Investors have grown cautious about funding hemp businesses as states implement restrictions and federal agencies signal potential enforcement. Several hemp companies that raised capital in 2021-2023 have struggled to achieve profitability as regulatory headwinds increase. Public companies with hemp exposure have seen stock price volatility tied to regulatory developments. Charlotte's Web Holdings, a CBD company that expanded into delta-8 THC, saw its stock decline 28% in the week following Ohio's preliminary injunction ruling, as investors worried about precedent for other state restrictions.

What Experts Say

Legal scholars specializing in cannabis law have offered divergent interpretations of whether the 2018 Farm Bill preempts state restrictions on hemp-derived cannabinoids. Robert Mikos, professor at Vanderbilt Law School and author of "Marijuana Law, Policy, and Authority," has argued that states retain broad authority to regulate intoxicating substances under their police powers. According to Mikos, the 2018 Farm Bill legalized hemp for federal purposes but did not prevent states from imposing additional restrictions. He points to the long-standing principle that states can regulate more strictly than federal law in areas of traditional state concern like public health and safety. Sam Kamin, professor at the University of Denver Sturm College of Law, has taken a different view, arguing that the 2018 Farm Bill's explicit language legalizing hemp derivatives creates a floor below which states cannot regulate. According to Kamin, Congress intended to create a national hemp market, and allowing states to pick and choose which hemp-derived cannabinoids to permit would frustrate that objective. Shawn Hauser, partner at Vicente Sederberg LLP and chair of the firm's hemp and cannabinoid practice, has represented hemp industry clients in multiple state disputes. Hauser contends that the statutory text is clear: hemp and all its derivatives are legal under federal law, and states cannot reclassify them without conflicting with federal policy. Public health experts have raised concerns about the lack of regulation and testing for hemp-derived intoxicants. Dr. Nora Volkow, director of the National Institute on Drug Abuse, testified before Congress in March 2025 that delta-8 THC and similar cannabinoids produce intoxication comparable to delta-9 THC and carry similar risks, including impaired driving, cognitive effects, and potential for cannabis use disorder. According to Dr. Volkow, the lack of testing and quality control for hemp-derived products creates additional risks from contaminants introduced during chemical conversion processes. The American Academy of Pediatrics issued a policy statement in June 2025 calling for federal regulation of hemp-derived intoxicants and state-level age restrictions. The organization cited poison control data showing a 340% increase in calls related to delta-8 THC exposure in children under 12 between 2021 and 2024. Agricultural economists have analyzed the impact of hemp-derived cannabinoid restrictions on farmers. Dr. Tyler Mark, professor of agricultural economics at the University of Kentucky, has studied hemp cultivation economics and found that most hemp grown for cannabinoid extraction goes to CBD production rather than delta-8 THC. According to Mark's research, restrictions on intoxicating hemp-derived cannabinoids would have minimal impact on hemp farmers, as CBD remains legal and represents the larger market. The economic impact falls primarily on processors who convert CBD to delta-8 THC and retailers who sell the finished products.

What's Next

The Sixth Circuit Court of Appeals will hear oral arguments in the Ohio hemp reclassification case in October 2026, with a decision expected by early 2027. The three-judge panel assigned to the case includes Circuit Judges Jeffrey Sutton, Jane Stranch, and Amul Thapar. Judge Sutton, appointed by President George W. Bush, is a former Ohio Solicitor General and has written extensively on federalism issues. Judge Stranch, appointed by President Barack Obama, previously served on the Tennessee Court of Appeals. Judge Thapar, appointed by President Donald Trump, is a former U.S. Attorney for the Eastern District of Kentucky. The court will consider whether the district court correctly found that the hemp industry is likely to succeed on its Supremacy Clause claim. The panel will also evaluate whether the preliminary injunction was properly granted and whether the balance of harms favors blocking Ohio's reclassification rule. If the Sixth Circuit reverses the preliminary injunction, Ohio's reclassification rule would take effect immediately, making delta-8 THC, THCA, and other intoxicating hemp-derived cannabinoids Schedule I controlled substances in the state. Retailers would have 30 days to remove products from shelves, and possession would become a criminal offense. The hemp industry would likely petition for en banc review by the full Sixth Circuit or appeal to the U.S. Supreme Court. If the Sixth Circuit affirms the preliminary injunction, the case would return to district court for trial on the merits. Ohio could still prevail at trial, but the preliminary injunction finding suggests the hemp industry has strong legal arguments. A final judgment in favor of the hemp industry would prevent Ohio from reclassifying hemp-derived cannabinoids and could influence similar disputes in other states. Federal legislative action remains possible but uncertain. Multiple bills have been introduced in Congress to address hemp-derived intoxicants, including proposals to ban them entirely, regulate them under a new framework, or clarify that states retain authority to restrict them. The Hemp and Hemp-Derived Consumer Products Market Act, introduced in the Senate in May 2026, would direct the Food and Drug Administration to establish regulations for hemp-derived cannabinoid products, including testing, labeling, and age restrictions. The bill has bipartisan support but faces opposition from both the hemp industry, which opposes federal restrictions, and marijuana industry advocates, who argue it creates an unfair parallel market. The DEA has not indicated whether it will take enforcement action against delta-8 THC manufacturers or retailers. The agency's focus has been on fentanyl, methamphetamine, and other drugs driving overdose deaths, and hemp-derived cannabinoids have not been an enforcement priority. However, the DEA could issue a final rule clarifying that synthetically derived cannabinoids are controlled substances, which would provide legal support for state restrictions. State legislative activity continues across the country. At least 12 states are considering hemp-derived cannabinoid legislation in 2026, with approaches ranging from outright bans to regulatory frameworks. The outcome of the Ohio litigation will influence these debates, as states watch to see whether courts uphold state authority to restrict hemp products. The Ohio General Assembly may revisit Senate Bill 326 or introduce new legislation to address hemp-derived intoxicants through statutory changes rather than administrative rulemaking. Legislative action would provide a clearer legal foundation than the Board of Pharmacy's rule, though it would still face potential federal preemption challenges.

Further Reading

• Agriculture Improvement Act of 2018, Public Law 115-334, available at https://www.congress.gov/bill/115th-congress/house-bill/2
• Ohio Revised Code Chapter 3719 (Controlled Substances), available at https://codes.ohio.gov/ohio-revised-code/chapter-3719
• Ohio Revised Code Chapter 928 (Hemp), available