On Wednesday, October 8, 2025, Governor DeWine issued a sweeping Executive Order aimed at quarantining “intoxicating hemp products” for at least 60 days. Although they are both derived from the plant cannabis sativa, hemp-derived products are distinguishable from medical and adult-use marijuana products, with the latter only being sold only in dispensaries licensed by the Division of Cannabis Control. The Governor issued the Order while the General Assembly is separately debating legislation that would ban the sale of intoxicating hemp products in gas stations and vape shops, while also allowing hemp-infused beverages to be sold at liquor license premises.
The Order will go into effect on Tuesday, October 14, 2025, barring court intervention before then.
What Does the Executive Order Do?
In the Order, the Governor makes claims related to dangers of intoxicating hemp products, including that many are:
(a) Marketed in ways that are attractive to children,
(b) Sold without child-resistant packaging,
(c) Sold without age verification,
(d) Sold near schools,
(e) Lack mandatory testing protocols,
(f) Found to include contaminants like pesticides, mold, and solvents, and
(g) Causing “hundreds of reports” of child poisonings over the last several years.
Given these cited public health risks, the Order determines there is a need to “prohibit the manufacture, distribution, and sale” of intoxicating hemp products. As such, the Governor directs the Ohio Department of Agriculture, which currently regulates hemp cultivation and processing in Ohio, to “clarify” via emergency rules that “intoxicating hemp” no longer meets the definition of “hemp” or “hemp products.” To do so, the Ohio Department of Agriculture will also promulgate an emergency definition of “intoxicating hemp.”
In the Order, the Governor takes the position that this clarification will not violate of R.C. 928.02(D) (which expressly provides that the addition of hemp to a product does not adulterate that product), because “intoxicating hemp” would no longer meet the definition of “hemp.”
Furthermore, the Order declares a “consumer product emergency” with respect to “all forms of consumer products containing intoxicating hemp” pursuant to R.C. 3715.74. Starting Tuesday, October 14, the Order provides for three directives:
1. Intoxicating hemp products must be removed from public display by all retailers;
2. No intoxicating hemp products may be sold or offered for sale during the pendency of the emergency; and
3. Retailers possessing intoxicating hemp products must segregate them and hold them for disposition by law enforcement or officials from the Ohio Department of Agriculture.
The Order will last for at least 60 days, subject to an extension by the Governor for an additional 30 days. The Order will subsequently cease to be effective unless extended by a concurrent resolution adopted by both houses of the General Assembly.
What Happens Next?
“Intoxicating hemp” is not currently a defined term either in the Ohio Revised Code or Ohio Administrative Code. Rather, the Revised Code only defines “hemp” and “hemp products” in R.C. 928.01(C) and (F), which generally provide that hemp and hemp products are legal provided they do not contain more than 0.3% delta-9 THC on a dry weight basis.
Importantly, Ohio law does account for THCA presence when determining whether a product meets that 0.3% THC threshold. See R.C. 928.01(J). So, any revised and new definitions from the Ohio Department of Agriculture must be consistent with the existing statutory definitions.
Until such time as the Ohio Department of Agriculture officially promulgates an emergency definition of “intoxicating hemp products,” however, it is not clear to which products this Order applies.
Even though the Order specifically identifies delta-8 THC products as the kind of intoxicating hemp products that caused the state of emergency, courts have found that delta-8 THC products are compliant under the federal Farm Bill’s definition of hemp. AK Futures LLC v. Boyd Street Distro, LLC, 35 F.4th 682 (2022); Anderson v. Diamondback Investment Group, LLC, 117 F.4th 165 (4th Cir. 2024); Ky. Hemp Ass’n v. Quarles, case no. 21-CI-00836, 2022 Ky. Cir. LEXIS 7 (August 3, 2022).
Ohio’s statutory definition of hemp was modeled after the federal definition – but to date no Ohio court appears to have addressed the legality of delta-8 THC products directly.
It is also expected that litigation will ensue challenging the legal basis for the Order before it becomes effective. There are several arguments that plaintiffs will have available, but two stick out immediately. First, it is not clear whether the government can sufficiently allege a consumer product emergency arising out of a category of products that are not yet defined.
Second, R.C. 3715.74 gives the Governor the authority to declare an emergency if there is a reasonable basis to believe that “one or more units of a consumer product” have been adulterated and that their further sale or use presents a threat to public health and safety. This language indicates that the declaration must pertain to a specific product or products, rather than an entire category of products.
The statute further provides the Governor with authority to issue specific orders related to the identified consumer product, such as removing all units of the product from public display, prohibiting its sale, or segregating it for further disposition. The reference specifically to units of a consumer product could lead a court to find that the Order is overly broad and, as a result, cannot be enforced without specifically identifying individual offending products.
Finally, if the emergency definition of “intoxicating hemp product” conflicts with the statutory definitions of legal hemp and hemp products found in R.C. 928.01(C) and (F), an argument can be made that the emergency definition is unenforceable. Paczko v. Ohio Dept. of Job & Family Servs., 2017-Ohio-9024, ¶ 10 (8th Dist.) (administrative rules or regulations derive from statutory authority, so they cannot supersede statutes with which they conflict). This is particularly true in light of R.C. 928.02(C), which states expressly that “. . . any person may, without a hemp cultivation license or hemp processing license, possess, buy, or sell hemp or a hemp product.”
The emergency rule defining “intoxicating hemp” will be filed with the Joint Committee on Agency Rule Review when finalized by the Ohio Department of Agriculture.
