Safer Solutions: The Perils of Regulatory Lag

The purpose of regulation is to prevent harm to consumers or bystanders. Be it for technology, medicine, food, water, vehicles, or any other regulated product, regulation should aim to protect the population while preserving access to things people want and need. There are many factors and interests to consider when creating regulations, which often leads to slow implementation and inflexibility. Regulatory policy affects many people and organizations, making deliberate implementation essential. Nevertheless, problems can emerge when regulation lags behind new developments or evidence. This is particularly true when it comes to novel intoxicating substances.

When a new intoxicating substance emerges or gains popularity, it might start out completely unregulated, creating a “wild west” market in which it is widely available to the public. A backlash effect often follows, with states and localities instituting their own regulations or prohibitions in the absence of federal guidance. The resulting regulatory patchwork does not always result in safer products and can create confusion for consumers and manufacturers. Such is the case with new intoxicating hemp derivatives.

The Changing Federal Legality of Hemp

The Controlled Substances Act (CSA) classifies cannabis and products derived from it as “marijuana” and designates them as Schedule I substances. Hemp, a variety of cannabis defined as “marijuana” since 1970, was illegal to grow in the United States until the 2018 Farm Bill removed it from the CSA’s definition. The Farm Bill differentiated hemp from marijuana based on its comparatively low content of delta-9 tetrahydrocannabinol (THC), the intoxicating chemical that induces cannabis’ high. To qualify as hemp under the law, plants’ delta-9 THC content had to be below the threshold that produces intoxicating effects. Policymakers legalized hemp with the intention that manufacturers would use this fibrous plant to make products like biofuel, paper, and biodegradable plastics—they did not intend for it to be marketed and sold as an intoxicant. But American ingenuity had different ideas.

Delta-9 THC’s chemical siblings, delta-8 and delta-10 THC, naturally occur in very small amounts in both cannabis and hemp. All three forms of THC are intoxicating, but delta-8 and delta-10 produce milder effects than delta-9. Cannabidiol (commonly known as CBD), a non-intoxicating chemical abundant in hemp, can be transformed into large amounts of delta-8 and delta-10 THC that manufacturers can add to consumer products.

Because hemp products were exempted from the CSA based on their delta-9 THC content, products made with delta-8 or delta-10 THC derived from hemp became a regulatory grey area. Manufacturers used this regulatory loophole to market many products with high enough delta-8 and delta-10 content to cause intoxication. Without a regulatory framework in place, the unchecked market for these products flourished—that is, until the November 2025 federal funding package changed the definition of hemp once again. Slated to take effect Nov. 12, 2026, the new definition—which hinges on total THC content rather than delta-9 content only, thereby eliminating the delta-8 and delta-10 loophole—has the hemp industry very concerned.

Addressing the Hemp Loophole

Since the proliferation of hemp-derived THC products was unexpected, no regulation governed the burgeoning market of drinks, gummies, vapes, oils, tinctures, capsules, and more. This regulatory lag meant that delta-8 and delta-10 products had no consistent age restrictions, labeling requirements, or rules to prevent cross-contamination with food products. This scenario sits in stark opposition to heavily regulated delta-9 products in states that have legalized cannabis.

As concern about the broad, unregulated availability of delta-8 and delta-10 products grew, state legislatures took a variety of actions to regulate or prohibit these products. For example, Ohio’s governor recently signed a bill to ban “intoxicating hemp,” while Texas’ governor vetoed a ban.

But once a product is on the market, it is difficult to put the genie back in the bottle—especially once consumers are accustomed to it and livelihoods depend upon it. Furthermore, swinging the pendulum from an unregulated-but-legal market to complete prohibition trades one set of harms for another. Prohibition has its own unintended negative consequences, from criminal justice and civil liberties harms to catalyzing the rise of more dangerous unregulated substances. Emerging substance regulation requires a nuanced approach that is neither too heavy-handed nor too permissive.

Conclusion

Finding the regulatory sweet spot for each intoxicating substance requires an understanding of its chemistry as well as the social environment that creates demand for it. Policymakers can then decide if it is best to regulate the product’s source—the cannabis plant, in the case of hemp—or the final products being sold to consumers. Both options have potential benefits and drawbacks. To help make this decision, policymakers should seek input from a range of experts and stakeholders before developing regulations and be willing to adjust as conditions change and new evidence emerges. While no one can predict every potential outcome of new or modified regulation, understanding the full context behind a substance is vital to minimize unintended consequences.