Ohio Bill Would Crack Down on Intoxicating Hemp Products

Delta-8 products purchased from a gas station. Credit: (Photo by Megan Henry)

On November 7, State Sen. Steve Huffman (R-Tipp City) proposed legislation to prohibit the sale of “intoxicating hemp products” in Ohio.

Senate Bill 326 aims “to protect Ohioans, especially Ohio’s youth, from untested, unregulated dangerous tetrahydrocannabinol (THC) products.”

While far less potent than marijuana, these products are sold without regulation at gas stations and specialty retailers, said industry observers.

“There’s testing on the cannabis side of things, but there’s none of that guidance for hemp,” said Lenny Berry, founder and CEO of the Ohio Cannabis Health & Business Summit, which brings vendors, speakers and industry leaders to the International Exposition Center every October. “I get the argument that there needs to be some kind of regulation to keep this from getting out of control.”

Whereas Berry emphasizes regulation, SB 326 calls for an outright prohibition of products containing more than 0.5 milligrams of delta-9 THC per serving, two milligrams of delta-9 THC per package, or 0.5 milligrams of total non-delta-9 THC per package. Delta-9 THC is the naturally occurring intoxicant found in marijuana, which is legal in Ohio and not included in the new bill’s language.

State recreational cannabis sales have surpassed $166 million since introduced in August, according to the Ohio Department of Commerce’s Division of Cannabis Control. Eliminating intoxicating hemp could further boost marijuana sales at Ohio’s 120-plus (and counting) storefronts, noted Tom Mikulski, who recently founded a cannabis company with summit creator Berry. Called Tom & Berry’s Special Reserve, the startup will sell flower and pre-rolled joints at regional dispensaries beginning early next year.

“If this did get banned in Ohio, I see legal dispensaries getting busier,” said Mikulski. “A lot of people who like those (hemp) products would have no choice but to go to a dispensary when they can’t get them anymore.”

Hemp, legalized in the U.S. as part of the 2018 Farm Bill, is grown for fiber, grain, seeds and non-intoxicating cannabidiol (CBD). The naturally-present CBD in hemp can be converted into delta-8 and delta-9 THC for edible and vapable products. CBD items are a budget-friendly alternative to THC, costing ten times less per gram, said Jeremy Cooper, an Akron-born cannabis “chef,” educator and events marketer.

A full ban would be a devastating blow to Ohio’s hemp industry, potentially shuttering thousands of shops. While many of these outlets are educated on products, they are given a bad name by unscrupulous sellers, Cooper added.
“Guys I know are doing conferences and going to supply side events,” said Cooper. “But there’s some people getting stuff from mom-and-pop kitchens and just throwing them out there.”

A bit of history

SB 326 is not the first attempt to remove intoxicating hemp from shelves. Earlier this year, Ohio Gov. Mike DeWine advocated for regulation or prohibition of delta-8. Known by some as “diet weed,” delta-8 is chemically similar to delta-9 THC, but produces a more subdued psychoactive effect. Both compounds originate from the cannabis sativa plant, with proponents championing similar benefits – from increased appetite to pain suppression.

Sen. Huffman also co-wrote SB 278, which would eliminate sale of adult-use hemp products to people under 21. Introduced in May, the legislation is still pending in the Ohio Senate. Yet, any strict crackdown of intoxicating hemp is a bridge too far for supporters including Cooper.

“We would see a devasting effect on some of these small businesses, including loss of employment,” said Cooper. “For this new bill, they are basically pushing the product into the hands of the dispensaries, which may create a monopoly.”

That’s not to say hemp sellers should be allowed to run amok: Though federally legal, delta-8 is already banned in 17 states, with products “severely restricted” in seven more as of November 2023, according to the National Cannabis Industry Association. Products marketed to children, like those packaged in cereal boxes, should absolutely get the axe, Cooper said.

“Look at public safety and proper packaging, and stop appealing to kids,” he said. “The state should look at toxicity testing, or put together a regulatory commission that controls that testing.”

Mike Getlin, director of licensing and public affairs at dispensary company Nectar Markets of Ohio, believes hemp sellers need the same oversight as recreational marijuana facilities.

“We must have extensive camera coverage of every square foot of every gas station, convenience store, and vape shop in the state,” Getlin said in an interview with Ohio Capital Journal. “There must be state sanctioned and regulated labs testing all products throughout the supply chain and product tracking systems capable of tracing back to origin sources.”

Measure for measure

Ohio’s cannabis control division oversees the state’s Medical Marijuana Control Program Patient & Caregiver Registry, with further responsibilities around licensing and regulation of cannabis cultivators, processors and dispensaries. Stringent OMMCP regulations limit THC content to 35% for plant material and 70% for extracts.

Though the federal farm bill legalized hemp with less than 0.3% THC, it provided no true guidelines for handling or testing, said Berry, the cannabis summit CEO.
“I’m dumbfounded there were no regulations or guidance in the 2018 bill,” he said. “A loophole was granted by the government, so you can’t be mad at businesses that took advantage of it.”

Nor did the farm bill set up a specific system for the potency of consumer products, whereas an a typical adult dose for marijuana is s approximately 10 milligrams of delta-9 THC, said Chris Lindsey, director of state advocacy and public policy for the American Trade Association for Cannabis and Hemp, in an Ohio Capital Journal interview.

“You buy a gummy in a licensed dispensary in Ohio, and there’s a limit to how potent that gummy can be,” Lindsey said. “That’s to protect consumers so they don’t consume too much.”

Similar to its current approach to cannabis, Ohio should implement testing protocols for adult-use hemp to ensure its purity. In addition, sales would be refused for anyone under 21. These options are preferable to a full ban, which would harm both consumers and businesses, said Berry.

“I also think that consumers are fighting back, in saying they know there’s recreational cannabis, but the prices are too high,” Berry said. “So, they’ll take the route (of hemp), knowing it’s not the same quality as a dispensary product, but it’s cheaper.”

If SB 326 becomes law, it would be enforced by the Ohio Investigative Unit with the assistance from the Ohio Department of Public Safety. Sellers would be subject to hefty fines, ranging from $10,000 for a first offense to $50,000 for a third.

Cannabis entrepreneur Mikulski views the bill as a harsh response to a minor issue, particularly given the availability of appropriate regulatory measures.

“The state would have to get involved with testing, but it doesn’t need to be so strict because it’s such a low dose of THC,” said Mikulski. “Someone’s only going to add something when they know they’re not getting tested and there’s no regulations.”

Subscribe to Cleveland Scene newsletters.