Oct 15 2025
Adult use marijuana has been legally sold in Ohio for over a year, but recently it’s intoxicating hemp that is stealing the headlines. Last week, Governor Mike DeWine issued an executive order declaring an Adulterated Consumer Product Emergency for consumable items containing intoxicating hemp. The order requires Ohio retailers of such products to cease selling intoxicating hemp products in Ohio by October 14, 2025. The hold on sales will last for up to 60 days or until the legislature takes action to regulate the products.
How Did We Get Here?
Marijuana and hemp come from the same plant, so what’s the difference, and why did the governor take such an extraordinary measure to control the spread of these products in Ohio communities?
Early American history saw widespread hemp cultivation by the Founding Fathers. Known as industrial hemp, it was used to make paper, rope, textiles, biofuel, plastics, and more. The first United States flag and Levi’s jeans were made from hemp, which was once the nation’s largest cash crop, so much so that hemp farmers even appeared on the back of the $10 bill. Industrial hemp is non-intoxicating and produces no psychoactive effects.
Cannabis has also long been valued for its medicinal properties. By the late 1850s, it was the most prescribed medicine in the U.S., commonly sold as tinctures in pharmacies. In the early twentieth century, attention shifted to its psychoactive effects, particularly when smoked. This version of the plant became known as marijuana and led into the modern day war on drugs.
The 2018 Farm Bill sought to revive industrial hemp as a legal cash crop and distinguish it from marijuana. However, the legal definition of hemp unintentionally allowed for the rise of intoxicating hemp products, undermining the original intent of the law.
So, how do you tell the difference between intoxicating hemp and marijuana? A primary distinction lies in how marijuana and hemp are defined under law. The federal definition of hemp has created a legal loophole that allows for intoxicating hemp to exist essentially with little to no regulation. Meanwhile the growth of legalized medical and adult use marijuana has been built upon the back of state based regulation.
Under federal law (the 2018 Farm Bill), “hemp” is defined as:
Cannabis sativa L. and any part of that plant, including its seeds and extracts, with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3% on a dry weight basis.
That definition legalized hemp and its derivatives, including CBD (cannabidiol), a non-psychoactive cannabinoid found in the plant, was being produced in limited amounts in 2018 in a few states that had state-legalized marijuana and hemp programs. However, chemists discovered they could convert CBD into Delta 9 THC, the primary psychoactive cannabinoid in the plant, and other psychoactive cannabinoids that are naturally produced in the plant but in lesser amounts, such as:
- Delta-8 THC
- Delta-10 THC
- THC-O acetate
- HHC (hexahydrocannabinol)
When produced in the plant, or derived from other cannabinoids in the plant, these intoxicating cannabinoids produce psychoactive effects like traditional Delta-9 THC found in marijuana, but because they’re made from hemp-derived CBD, they fall into a legal gray area. These products can be just as potent if not more so, than medical and adult use marijuana is sold in licensed and regulated dispensaries. However, these products are being sold in gas stations, smoke shops, carry outs, convenient stores, and just about anywhere can sell them without any state regulation.
Regulating Cannabis in Ohio
Medical and adult use cannabis operators in Ohio are heavily regulated and require licensure, oversight and enforcement by the Ohio Division of Cannabis Control (Division). This includes strict adherence to state laws on product and consumer safety, testing, prescriptive packaging and labeling requirements to ensure products are sold in child resistant packaging and not marketed to children.
The hemp market is not similarly regulated and is not held to any of those standards or enforcement by state officials. At this time there are no laws or rules in Ohio that address the retail sale of intoxicating hemp products. This means there are no minimum age requirements, testing requirements to detect pesticides, heavy metals, mold, or other contaminants, labeling requirements, advertising restrictions, or child-resistant packaging. And importantly, no penalties or repercussions against retailers who sell products designed to be advertised and sold to minors.
What’s Next to Regulate Intoxicating Hemp?
The Ohio General Assembly has been trying to address this issue through proposed legislation and has held a series of public meetings, but nothing has made it to the governor’s desk to sign. The lastest efforts to get something passed were earlier this spring. The governor however has decided to take matters into his own hands by issuing an executive order to curb the sale of intoxicating hemp and perhaps force the legislature to reach agreement on a regulatory framework for intoxicating hemp products.
On October 8, 2025, Governor DeWine signed an executive order declaring a public product safety emergency in Ohio regarding consumable items containing intoxicating hemp. The order requires Ohio retailers to cease the sale of all intoxicating hemp products by Tuesday, October 14th. Once in effect, the order authorizes local and state authorities, including the Department of Agriculture and local law enforcement, to enforce the ban against retailers who have continue to sell intoxicating hemp products after that date. This product safety emergency is allowed under Ohio law to be in effect for up to 90 days unless extended by the legislature.
Additionally, the executive order also directs the Department of Agriculture to revise the administrative rules that define “hemp” and “hemp product” and to exclude intoxicating hemp from what is considered legal hemp. The executive order further suspends the statutory rulemaking process to allow for the revised definitions to become effective immediately for 120 days, allowing for the regular rulemaking process to proceed concurrently.
The executive order does not apply to non-intoxicating hemp products (that is, hemp products containing less than 0.3% total THC)
On or about October 9, 2025, the Ohio Department of Agriculture released its revised definition of hemp and hemp product, and provides a definition of intoxicating hemp:
“Intoxicating hemp” means a product that would be a hemp or a hemp product except it contains more than five-tenths of a milligram of tetrahydrocannabinol per serving or more than two milligrams of tetrahydrocannabinol per package. “Intoxicating hemp” does not include products regulated under Chapter 3780 or 3796 of the Revised Code.
However, the executive order was quickly challenged and a lawsuit was filed to block enforcement. On October 14, 2025, the day the ban was set to take effect, a Franklin County Common Pleas Court Judge granted a temporary restraining order blocking enforcement of the executive order.
The lawsuit contends the executive order violates the separation of powers and will cause employee terminations and business closures by rendering these intoxicating products for sale under federal law illegal.
We shall see if the effect of this executive order and the temporary restraining order will bring members of the legislature and stakeholders together to help find a solution to either ban all intoxicating hemp products or to establish a regulatory scheme similar to the way medical and adult use cannabis are regulated.
Our office continues to monitor this matter very closely and will keep you updated.
https://www.jdsupra.com/legalnews/high-stakes-in-ohio-dewine-orders-3465283/
