States Are Increasingly Regulating Hemp-Derived THC Infused Beverages

Cannabis Aug 28, 2024 Boca Raton, FL

Hemp-derived delta-9 tetrahydrocannabinol (THC) beverages, commonly known as THC-infused beverages, are gaining traction in the market. The surge in popularity is driven, in part, by the increasing availability of these products in major alcohol retail stores across various states. As THC infused beverages become more prominent, states are increasingly focused on regulating them.

THC-Infused Beverages

Delta-9 THC is a psychoactive cannabinoid naturally found in cannabis. It is the primary intoxicating compound in state-regulated marijuana markets. The 2018 federal Farm Bill defined hemp as any cannabis plant or derivative with no more than 0.3% delta-9 THC on a dry-weight basis. The 0.3% THC threshold for hemp, which was intended to measure the THC concentration of the plant around the time of harvest, is being used in certain jurisdictions as the standard for THC concentration (on a wet-weight basis) in consumable hemp products. This can result in highly intoxicating beverages available in the marketplace.

How States Are Regulating THC-Infused Beverages

States have taken varied approaches with respect to THC-infused beverages. Some states have outright bans, others are treating them like cannabis products and regulating them under existing marijuana programs, and some don’t do anything – oftentimes creating uncertainty as to the legal status of such beverages. For states that do regulate consumable hemp products, THC beverages have traditionally been lumped together with other products intended for ingestion. Recently, however, states have been specifically referencing THC beverages in their laws and regulations to more appropriately address the emerging product category. In 2023, Minnesota explicitly allowed the sale of hemp-derived THC beverages. Since then, several states, including Georgia, Iowa, and Louisiana, have passed legislation addressing THC beverages. While no two states are alike, common regulatory requirements for THC-infused beverages include:

Sales restricted to individuals aged 21 and older;
Retailer licensing;
Product registration;
Independent laboratory testing;
Specific labeling and packaging standards;
THC limits of milligrams on a per serving and/or per container basis (in addition to the 0.3% concentration threshold);
Marketing restrictions; and
Prohibitions of adding THC to alcoholic beverages.

Looking Ahead

As THC-infused beverages continue to grow in popularity, they will face increased scrutiny. At the federal level, the U.S. Food and Drug Administration (FDA) has not approved THC in food products, which is defined to include beverages.[1] However, the FDA has yet to target THC-infused beverages, instead focusing its attention on companies that sell consumable hemp products containing delta-8 THC or CBD. Meanwhile, the U.S. Congress is debating whether to regulate intoxicating hemp products that many argue it unintentionally established by passing the 2018 Farm Bill. Unless or until the federal government steps in, expect more states to enact laws and regulations addressing THC-infused beverages.

The information provided in this blog does not, and is not intended to, constitute legal advice; instead, all information in this blog is for general informational purposes only. Notably, this blog does not fully address federal laws and regulations applicable to products intended for human consumption. No reader of this blog should act or refrain from acting on the basis of information in this blog without first seeking legal advice from counsel.

[1] See FDA Regulation of Cannabis and Cannabis-Derived Products, Including Cannabidiol (CBD) | FDA.

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