Nearly five years after Illinois became the eleventh state to legalize recreational marijuana, a new, rapidly expanding cannabis market has raised concerns from residents and lawmakers alike. Hemp-derived THC products, which remain largely unregulated, have become increasingly abundant and easily accessible due to a loophole in federal and state laws.
In 2019, the Illinois General Assembly legalized the sale and possession of recreational marijuana through the passage of the Cannabis Regulation and Tax Act. The legislation gave the state the ability to regulate the sale of marijuana by imposing strict standards and hefty excise taxes, touted by many as an effective means of protecting consumers and generating meaningful revenue but does not regulate hemp. Hemp was initially allowed under Congress’s 2018 Farm Bill, and falls under the Illinois Industrial Hemp Act. As such, the sale and cultivation of hemp has grown quickly across the country, allowing for a burgeoning market of hemp-derived THC products with little regulation compared to marijuana.
The 2018 Farm Bill removed hemp from the definition of marijuana. This created the loophole where hemp products were created and sold without any regulation leading to Delta-8’s popularity. Users don’t have to go to a dispensary and pay higher prices (albeit for high quality) when they can get Delta-8 products cheap and virtually anywhere.
Because of the loophole in the law, the proliferation of hemp-derived THC products in Illinois has boomed in recent years. While recreational marijuana must be sold at licensed dispensaries which are held to strict standards as it relates to who can purchase these products and how much they can buy, THC products derived from hemp or infused with THC derived from hemp are held to no such standards. In Illinois, Delta-8 and other hemp-derived products are often sold at gas stations, convenience stores, or online platforms, making it easier for consumers, including children, to purchase cannabis.
Because of the loophole in the law, the proliferation of hemp-derived THC products in Illinois has boomed in recent years. While recreational marijuana must be sold at licensed dispensaries which are held to strict standards as it relates to who can purchase these products and how much they can buy, THC products derived from hemp or infused with THC derived from hemp are held to no such standards. In Illinois, Delta-8 and other hemp-derived products are often sold at gas stations, convenience stores, or online platforms, making it easier for consumers, including children, to purchase cannabis.
The difference between hemp-derived THC and marijuana (which contains more concentrated THC in its natural form) is the extraction process used for hemp-based THC are more unregulated than cannabis handling and extraction processes under Illinois law, raising safety concerns. Both hemp and marijuana are called cannabis, and the terms “hemp” and “marijuana” are used to classify their levels of THC. THC is one of the many chemicals found in cannabis and is responsible for the “high” that is associated with cannabis. Hemp is cannabis that contains 0.3% or less THC, whereas marijuana contains 0.3% or more. Because the levels of THC in hemp are so low, it is unlikely to get a user “high” in its natural state, unless concentrated through chemical processes. This extraction and concentration process for hemp is unregulated and creating products more intoxicating than allowed for cannabis under the hemp loophole in existing Illinois laws.
Even though cannabis has been legalized in Illinois, we have regulations on its cultivation, testing, and sales to make sure the cannabis on the market is safe and that it’s sold to appropriately aged users. So far, this regulation has been applied to Delta-9 products. The issue at hand is Delta-8 products, which are rising in popularity, and are not regulated.
The growing market of unregulated THC products poses a threat to more than just the state’s coffers. To date, Delta-8 THC products have not been approved by the Food and Drug Administration, meaning they are not subject to rigorous health and safety evaluations. At the state level, these products are not held to the same testing standards as those sold in licensed dispensaries. In Illinois, all marijuana products must undergo testing for contaminants including heavy metals, pesticides, and mold to ensure they are safe to consume. In contrast, hemp-derived THC products bypass these tests entirely, meaning they may contain harmful chemicals, or in some cases, added synthetic cannabinoids that increase potency and health risks.
These unregulated products also forego the meticulous potency testing that marijuana does. In addition to testing for contaminants, the Illinois Department of Agriculture requires licensed dispensaries to accurately label all products with their exact THC content so that consumers may understand the strength of the product. Though they may list information on their contents, hemp-derived THC products often forego rigorous potency testing and have wildly inconsistent levels of THC, leading to potentially unsafe usage. People using Delta-8 products run a high risk of the products being manufactured improperly, containing harmful chemicals, or not getting an end product that matches what’s on the label.
In Chicago, there have been numerous incidents of high school students becoming violently ill due to using Delta-8 products obtained at a nearby corner store. These products often target kids, with packaging mimicking candy brands. Between 2020 and 2022, national poison control centers received over 2,000 Delta-8 related calls, with 41% of users under the age of 18, and 70% needing immediate medical evaluation. Delta-8 is already a dangerous issue.
House Bill 4293 would not have banned all hemp products, instead it would have banned only Delta-8 products and regulated hemp-based Delta-9 products. The bill would only allow vendors to sell products meeting the definition of hemp consumer CBD products (or products sold by a licensed cannabis business establishment), require lab testing for these hemp consumer CBD products, and outlaw those products from being made attractive to kids. In other words, the bill simply sought to put a stop to the dangerous use of Delta-8 products and regulate other hemp products.
Governor Pritzker spoke on hemp products during an end-of-session news conference back in May, stating: “It’s not regulated the way that cannabis is, and yet it ends up on the market, and there’s no restriction on who gets it [or] how much they can get. I really believe that we need to step back and ask what is in the best interest of the health of kids and adults across the state.”
As the hemp-derived THC industry continues to expand, Illinois lawmakers will be forced to rehash previously introduced initiatives or allow the products to remain largely unrestricted. Until this loophole is closed, unregulated THC products will only become more accessible and pose further risks for Illinoisans.