Delta-8 legal clarification unlikely as Statehouse stalemate persists

A hemp crop waits to be harvested for CBD oil producer Crop England on grows on August 27, 2021. (Christopher Furlong/Getty Images)

In the nearly six years since a federal law appeared to open the doors to delta-8, the marijuana-like drug has grown into a billion-dollar Hoosier industry.

But it’s done so on shaky legal ground, leaving retailers and law enforcement officials alike seeking legislative clarification: is delta-8 allowed in Indiana?

“The legislature needs to act to provide regulatory certainty for businesses and legal certainty for both law enforcement and prosecutors,” Rep. Jake Teshka, R-North Liberty, told the Capital Chronicle.

“In the absence of us doing anything, there’s just this huge legal gray area, and it breeds a ton of problems,” said Teshka, who authored an unsuccessful attempt to regulate delta-8 last session.

Lawmakers, however, indicate a Senate-House stalemate is unlikely to give — even with the state on the hook for a year-old lawsuit over the hemp-derived psychoactive’s status.

Hemp frenzy

Congress revived the industrial hemp industry in 2018’s agriculture-focused farm bill by removing the plant and its seeds from the definition of marijuana.

It’s generally considered legal as long as it contains less than 0.3% delta-9 tetrahydrocannabinol — or THC, the major psychoactive component in the plant — by dry weight. Above that, it’s considered banned marijuana.

Indiana promptly followed suit. Lawmakers in 2018 legislation used the same delta-9 cutoff in legalizing low-THC hemp extracts, and added more hemp-related regulations in another law the following year.

The state’s delta-8 industry has boomed, as an apparently legal alternative to marijuana.

About 540 Indiana retail stores and nearly 1,400 gas stations have sold about $637 million worth of hemp-based cannabinoid products, according to a 2023 study by hemp-cannabis data firm Whitney Economics. Those sales made a total economic impact of about $1.8 billion, the company found.

But concerns over delta-8’s legality have dogged the industry’s growth.

The Indiana State Police (IPS), for instance, has long held that Indiana Code classifies all THC types — both naturally occurring and synthetic — as Schedule I controlled substances, according to comments spokesman Capt. Ron Galaviz made to Indiana Public Media in 2021. The designation means a substance has no accepted medical use but does have a high potential for abuse.

Stuck at the Statehouse

Within a year of legalization, lawmakers like Sen. Liz Brown, R-Fort Wayne, began filing unsuccessful attempts to walk back the state’s freshly inked stance on certain hemp products, such as cannabidiol (CBD) oil.

Then, they turned to delta-8.

Sen. Mike Young, R-Indianapolis, repeatedly proposed editing the 0.3% delta-9 cutoff to include all THC types. Bills in 2021 and 2022 would’ve banned most delta-8 products.

Proposals regulating the substance haven’t survived the legislative process either.

The contention escalated into a lawsuit last June, when the state’s top attorney opined that delta-8 is illicit. The advisory came in response to an ISP and Indiana Prosecuting Attorneys Council request for guidance.

Retailers sued, alleging raids and other repercussions.

Some on both sides of the equation still want answers from the Statehouse.

“This is absolutely a public policy question,” said Justin Swanson, co-founder and president of the Midwest Hemp Council. The trade organization, which is a plaintiff in the lawsuit, has dozens of members.

Vanderburgh County Sheriff Noah Robinson said he agreed with Indiana Attorney General Todd Rokita’s legal interpretation, but still directed his deputies to back off on enforcement in a February special order.

He reaffirmed a policy of issuing citations instead of making physical arrests for simple possession of marijuana, and halted raids of retailers for the sole purpose of investigating delta-8.

“I like knowing the law that I’m enforcing has solid ground underneath it,” said Robinson, who is not involved in the legal battle. He thinks delta-8’s legal status is “up in the air” and “in flux.”

“Do I ultimately think that the attorney general is correct, and that delta-8 is illegal? I do,” Robinson said. “But … we have an obligation not to bring charges that we are unsure about whether we will be successful in obtaining a conviction or not, and I just don’t want to be the test case. I’d rather have the Legislature clarify this.”

The case against

Although Republicans hold supermajorities in both the Indiana Senate and House, the two chambers disagree on some issues — including on delta-8.

“It shouldn’t be the policy of the government to allow people to alter their minds,” Young, the Indianapolis senator, said.

“If that’s what the House of Representatives wants, is to have people alter their faculties, they did the right thing,” Young said, by killing his attempts to ban the substance.

He didn’t yet have plans to try again.

“… (If) I know that delta-(8) is not going to be heard in the House, why would I waste a bill?” Young asked.

Brown, meanwhile, worried about health and safety, particularly for the state’s youngest residents.

Brown, the Fort Wayne senator, feared children would use delta-8 as a “gateway” to other drugs, and noted a rise in accidental poisonings.

Hoosiers make thousands of poison control calls per year for edibles, according to WTHR. About 75% of calls in recent years were for children who’d gotten into the adult products. Some required hospitalization.

Brown indicated there are too many unknowns to delta-8, saying, “I’m not opposed to a medicinal product that has been tested and proven, but this is the Wild West.”

“We really need to understand what is the good and the bad, and have very clear guidelines,” she added. “I’m not sure that we have the ability to do that right now.”

The case for

Other lawmakers shared that unease but saw alternate fixes.

Teshka, for instance, similarly described feeling alarmed by delta-8 candies with designs that could appeal to children. But he viewed regulation as the “best way to address these concerns.”

“In my mind, it’s pretty clear that the 2018 Farm Bill made hemp-derived cannabinoids like delta-8 legal, so whether that was intended or not, that is the law of the land. In the absence of the state … regulating the product, it really opens the door for potential bad actors, for contaminants in products, for children to get their hands on these things,” Teshka said.

His House Bill 1079 last session would have added new hemp handling licenses, packaging requirements, and an age minimum of 21 years old — complete with financial penalties. It passed the House 85-11, with nine of the “nay” votes from fellow Republicans, but never got a Senate hearing.

Legislation from Sen. Travis Holdman, R-Markle, would’ve gone even further.

Senate Bill 59 included many of the same provisions as its House counterpart but would also have specifically banned “cartoon-like” designs appealing to children and required “tamper-evident” packaging.

The bill additionally imposed testing requirements featuring maximum levels of heavy metals, pesticides, herbicides, molds and more. And it penalized violations with license suspensions and revocations in addition to the fines.

It never got a hearing in its originating chamber and succumbed at the session’s first deadline.

“I think the Legislature could provide some guidance, but we can’t seem to get consensus. I know the House has passed legislation before. It gets bogged down in the Senate,” Holdman said. “And I just want some regulation on the product being sold currently.”

Asked for his outlook, Holdman said, “I think it’s going to get resolved eventually. Because we’ve got to do something with it: either to make it illegal legislatively … or to regulate. One of the two.”

Looking beyond

Justin Journay moved his delta-8 company 3Chi from Ohio to hemp-friendly Indiana in 2019. But as the legal interpretation that the substance is banned has taken hold, he’s been expanding manufacturing operations elsewhere.

Journay, whose firm is a plaintiff in the lawsuit, estimates that in “near future,” 50% or more of the business could be back out of state.

Despite that, he wants to stay.

“My house is here, everything’s here,” he said. “We’ve built a life here.”

Federal Judge James R. Sweeney II, of the Southern District of Indiana court, dealt the plaintiffs a blow in late March when he denied their request for a preliminary injunction, finding they didn’t establish irreparable harm.

Sweeney wrote that he’d next consider several pending motions to dismiss and for judgment on the pleadings.

But federal action — which supersedes the state’s Legislature and judiciary — could be on the horizon.

The farm bill is typically renewed every five years, and it’s overdue for its next update.

Several states, Indiana included, welcomed clarity from the nation’s top law-making body.

“As Congress prepares to embark on a new five-year reauthorization of the Farm Bill, we strongly urge your committees to address the glaring vagueness created in the 2018 Farm Bill that has led to the proliferation of intoxicating hemp products across the nation and challenges to the ability for states and localities to respond to the resulting health and safety crisis,” the attorneys general of 20 states — including Indiana — and the District of Columbia wrote in a March letter.

“The definition of hemp should be amended to clarify that there is no federal hemp intoxicants loophole, and the 2023 reauthorization should reaffirm that members of Congress do not intend to limit states in restrictions or regulations related to cannabinoids or any other derivatives of hemp which are deemed intoxicating,” Rokita and the other officials wrote.

Congress passed an extension of the Farm Bill last fall, but progress since then has been slow. Summaries from the U.S. House and Senate agriculture-oriented committees don’t mention delta-8 or hemp.

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