COLUMBUS, Ohio — Ohioans will still be able to have and use "intoxicating" hemp, low-level THC products such as delta 8, during the state's temporary ban — but it would be illegal to sell it.
On Wednesday, Gov. Mike DeWine announced in a news conference a state of emergency starting Tuesday due to the "availability and abuse of intoxicating hemp products remains a serious threat to public health and safety."
What is intoxicating hemp? What is delta 8, delta 9?
Delta 8 and 9 are cannabinoids produced by the cannabis plant, often manufactured by CBD. Ohio doesn't have an age requirement to buy them since it is .3% or less of THC. Thus, hemp products can be sold almost anywhere in the state, and the government has no jurisdiction over them.
How long has hemp been legal?
Congress’s Agriculture Improvement Act of 2018 allowed for hemp products to be sold as long as they have .3% THC or less. U.S. Customs and Border Protection issued guidance on their website that under the law, the Drug Enforcement Administration no longer has the authority to seize and criminalize sending or buying seeds with less than .3% THC. The DEA has also given this statement to numerous attorneys around the country with the same advice, including specifically addressing cannabis.
What is this executive order? What does it apply to?
According to the order, all consumer products containing intoxicating hemp must be removed from public display by all retailers, no consumer products containing intoxicating hemp may be sold or offered for sale during the state of emergency and any retailer who has intoxicating hemp must segregate these units from other merchandise and hold them, or a portion of them, for law enforcement officers or officials of the department of agriculture. The ban lasts for 90 days.
This means there is a full removal. Any intoxicating hemp product that isn’t regulated by the state's marijuana division must be pulled from smoke shops, breweries, convenience stores, or anywhere else they are sold. This even includes unregulated hemp products sold in marijuana dispensaries, the governor's team told us.
"This is specifically aimed at synthetic, intoxicating hemp products that can be sold to kids, have no quality control and are simply dangerous," DeWine said during the press conference.
Can I still buy hemp products by mail?
Case Western Reserve University law professor emeritus Jonathan Entin explained that this is a tricky question.
"Typically, states don't get to regulate out-of-state actors unless those actors are physically present in the state or the state can say, 'You have sufficient practical contact with the state that we can regulate you,'" Entin said.
During the press conference, I asked the governor how this would impact mail-in. Through a back-and-forth, he said I was asking a "hypothetical," since "intoxicating hemp" products can't be sold over the internet.
Later, the governor’s team clarified to me that online sellers must follow state law and not sell to Ohio residents.
If this is about public safety, why not ban alcohol, tobacco and marijuana, too?
All are regulated markets, DeWine and his team said.
"As far as alcohol, it's totally, it has been regulated, historically, from the state of Ohio," DeWine said. "We regulate it. The person who is serving that beer, they can lose their license if they're serving to a minor — that's the difference."
Will this ban really last 90 days?
There is only one way it doesn't.
"The executive order itself is unconstitutional," Dakota Sawyer, who represents hemp sellers, said.
Titan Logistic Group, Fumee Smoke and Vape and Invicta Partners filed a lawsuit in the Franklin County Court of Common Pleas, saying DeWine is breaking federal and state law by restricting access to these products. They add that he doesn't have the authority to make this order, either.
The lawsuit asks a judge to block the state's ban before it goes into effect.
RELATED: Businesses sue Ohio Gov. Mike DeWine over ban on 'intoxicating' hemp, delta 8 products
Can I get in trouble for possessing hemp products during the prohibition?
No. The executive order only bans selling.
Retailers who continue selling intoxicating hemp could be fined $500 each day the products remain on sale. The state will have the authority to seize products if they are still available for sale.
Everything you need to know
I have a running series of answering questions and concerns about legal weed.
Earlier installments have focused on learning the basics of the law and then how to buy it. Then, I answered questions about where to partake and addressed employment concerns. My most recent stories focus on the latest restrictive proposal passed by the Ohio Senate, a fact check that also informed viewers on how to contact their lawmakers and another update on where policy stood.
Have questions? Let me know, and I'll answer them.
I have continued to cover any and all changes to marijuana policy that lawmakers are trying to make.
I also have a series answering your questions about cannabis in Ohio. Please email me written questions — or a video of you asking a question — to be featured in our next edition. Send questions to Morgan.Trau@wews.com with the subject line "Marijuana questions."
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