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Dazed and Confused: Making Sense of The Status of Legalized Marijuana
Federal legislation and executive action, and Ohio’s recent legislative revisions to legalized recreational marijuana forecast continued changes. It appears employers will be waiting a bit longer for these hazy legal clouds to clear.
What the 2018 Farm Bill Did: The “Hemp Loophole” and Intoxicating Hemp Products.
In the 2018 Farm Bill, Congress legalized low THC (tetrahydrocannabinol) delta-9 cannabis. THC is the compound that produces the “high” associated with marijuana. Delta-9 is considered the most potent form of THC but other forms (delta-8 THC and delta-10 THC) are also “intoxicating.”
After the 2018 Farm Bill revisions, cannabis with a delta-9 THC concentration of .3% or less by dry weight was considered “industrial hemp” and legal. Other forms of THC (including delta-8 and delta-10 THC) were excluded (along with low delta-9 THC) from the definition of an illegal controlled substance. This so-called “hemp loophole” allowed the production and sale of numerous THC containing products, such as gummies, tinctures, vapes and beverages, that were not subject to federal and state cannabis laws and regulations.
In the November 2025 federal appropriations legislation, Congress largely removed this “industrial hemp” protection for hemp derived THC containing products, closing much of the hemp loophole. The new definition sets a cap of .4 milligrams of total THC (not just delta-9) per container. The Food and Drug Administration (FDA) has been directed to publish lists of various types of THC containing cannabinoids and define “container” under the new definition. The practical impact of the new definition will be that many, if not most, intoxicating hemp products such as THC gummies, vapes and THC infused beverages will become illegal marijuana under federal law. The new definition goes into effect on November 12, 2026.
What Ohio Senate Bill 56 Restricts.
The Ohio legislature passed Senate Bill 56 which similarly addressed intoxicating hemp products as well as other aspects of Ohio’s legalized marijuana law. Governor Mike DeWine signed the law on December 19, 2025, but vetoed a provision providing a transition period until December 31, 2026, before the law would apply to THC-containing beverages. Senate Bill 56, effective March 20, 2026, essentially treats intoxicating hemp products in the same manner as other marijuana products, meaning they are subject to appropriate restrictions and regulations (including age limits, testing requirements and packaging and advertising restrictions). Additionally, the products only will be available for purchase at licensed dispensaries. A recent attempt to overturn Senate Bill 56 by Ohioans for Cannabis Choice fell short of obtaining the necessary signatures to prevent the legislation from going forward and, to date, lawsuits to prevent the legislation from going into effect have been unsuccessful.
Senate Bill 56 also:
- prohibits smoking marijuana in most public places;
- prohibits possession of marijuana outside of the original packaging;
- prohibits transporting marijuana purchased in other states across state lines; and
- reduces the cap for THC content of extracts from 90% to 70%.
Federal Rescheduling to Schedule III Creates Additional Confusion.
Consistent with the previous administration’s position, the Trump Administration has encouraged rescheduling marijuana under the Uniform Controlled Substances Act from a Schedule I drug (considered to have a high potential for abuse and no currently accepted medical use) to a Schedule III drug (considered to have a low potential for abuse with accepted medical use). The rescheduling would permit studies and allow tax deductions previously unavailable to businesses engaged in the manufacture and processing of Schedule I drugs. While President Trump’s executive order directed the Department of Justice to expedite rescheduling, a rulemaking process still needs to be completed, and no definitive timetable has been announced.
What Does This Mean for Ohio Employers?
Given the constantly changing legal landscape addressing marijuana, employers need to closely monitor legislative and regulatory activity on the federal and state level. Ohio employers should:
- review current drug-free workplace policies;
- ensure those policies clearly encompass all THC containing products;
- denote that drug testing, and the consequences for positive tests, apply to delta-9 THC, hemp-derived THC or synthetic compounds that are similarly intoxicating; and
- provide education and training for supervisors in recognizing other THC-containing products and responding to employee inquiries.
How employers address these issues under their drug free workplace policy and drug testing procedures will be critical for effective enforcement.
Should you have any questions regarding how the new marijuana laws and regulations may affect your workplace, please contact Mr. Yates or Ms. Fierro.
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Disclaimer: This alert has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.