CLEVELAND – Some recent court decisions have left advocates for policies restricting the sale and availability of intoxicating hemp products encouraged that legislation could be passed in Ohio sooner rather than later — including every stakeholder in the state’s licensed marijuana industry.

Key among those cases, as well as the most recent, is Bio Gen LLC v. Sanders.

Per a ruling on that lawsuit this summer, the Eighth Circuit Court of Appeals rejected claims by makers and sellers of hemp-derived products in Arkansas that the state lacked authority to regulate the sale of those products within its boundaries, vacating a preliminary injunction approved by a lower court, Crain’s Cleveland Business reports.

That result follows similar rulings from the Fourth Circuit and Seventh Circuit courts of appeal and helps build on a “compelling and persuasive” narrative that could influence policy in states like Ohio, said Tariq Naeem, co-chair of the health and life sciences group at Cleveland-based law firm Tucker Ellis.

This is the case, he said, despite Ohio being under the purview of the Sixth Circuit federal judicial district.

“The common decision (among these cases) is that the 2018 Farm Bill does not forbid states from defining hemp how they want to and putting restrictions on the availability of hemp products within their borders,” Naeem said. “The decisions are not binding on courts in the Sixth Circuit, but they are persuasive authority.”

OHCANN, a trade group promoting the interests of Ohio’s licensed marijuana companies, is optimistic that these cases might have some influence on state policymakers that they feel have been slow to act.

“We have this loophole that was created in the Farm Bill that was never intended,” said OHCANN Executive Director David Bowling. “I think the Bio Gen ruling reaffirms that from a different level of government.”

It remains to be seen when or whether lawmakers will pass laws restricting intoxicating hemp, which has been proposed via State Bills 56 and 86.

Both those bills, introduced in January and March, respectively, aim to significantly curtail the widespread availability of untested and unregulated intoxicating hemp-derived products.

Commonly sold as gummy candies and vapes, these products have exploded in popularity since the passage of the 2018 Farm Bill, which created an opening for their proliferation. In the years since, they’ve become ubiquitous at gas stations, convenience stores, smoke shops, liquor and grocery stores where their sale is not subject to age restrictions.

Separate from concerns over health, safety and access to minors, this dynamic frustrates licensed marijuana companies that don’t have the same consumer access and who see these items undercutting sales in their strictly regulated industry segment.

Hemp industry groups representing retailers, manufacturers and other stakeholders, such as the U.S. Hemp Roundtable, have largely agreed with the basic premise that hemp products should be regulated in some fashion to promote consumer safety and prevent underage access.  Jim Higdon, co-founder of Cornbread Hemp in Louisville, Kentucky, and vice president of outreach for the U.S. Hemp Roundtable, has conveyed as much during bill testimony in Ohio.

What pro-hemp advocates have campaigned against, however, are efforts like those in Ohio to relegate the sale of these hemp-derived products only to licensed cannabis dispensaries, where products are inherently subject to rigorous testing and ingredient labeling requirements and restricted to consumers age 21 and older.

“The U.S. Hemp Roundtable is committed to safe hemp and CBD products,” said Jonathan Miller, general counsel for the U.S. Hemp Roundtable, during testimony in opposition to S.B. 56. “We have long supported self-regulation of the industry, and prefer the reforms outlined in an alternative bill, H.B. 198, which include stronger enforcement against violators, licensing for manufacturers and sellers, independent testing of hemp products, adequate labeling which prohibits child-enticing images, and age restrictions on the sale of hemp-derived consumable products.”

During a June testimony, Miller also said that “It is important to keep in mind that hemp products are legal under federal law while marijuana is not. The legal implications of forcing hemp products to be sold by marijuana dispensaries haven’t all been fully explored, but significant questions remain as to the ability for states to limit access in such a manner.”

Regarding any notions or legal implications regarding states having the authority to regulate the sale of hemp-derived products within their borders, though, courts are increasingly developing a body of rulings to the contrary via decisions like that in Bio Gen LLC v. Sanders.

Crain’s has reached out to the U.S. Hemp Roundtable for comments regarding rulings such as these.

“For Ohio lawmakers concerned about the legality of restricting intoxicating hemp products, (the Bio Gen) decision — along with others recently issued — should offer reassurance,” said Luis Alcade, a cannabis attorney and director with law firm Kegler Brown. “Of course, the hemp industry has its own lobbying efforts and will continue to advocate for its interests. But I believe the tide is turning, and regulatory action is likely on the horizon.”