Hawaii bans CBD edibles, but not Delta-8

Medical marijuana and hemp production are both legal in Hawaii, and marijuana generally is decriminalized; yet its programs remain some of the most restrictive in the nation, despite state senate support for

broader legalization. SB 758 and SB 767 were both introduced into the Hawaii legislature during the regular 2021 session. SB 758 was designed to broaden the existing decriminalization laws by increasing the possession threshold form three grams to one ounce. SB 767 would legalize adult use cultivation, production, sale and possession of recreational adult-use cannabis and would have charged the state Department of Health with creating a regulatory framework for such business licenses and retail sales. However, both bills passing the Senate, they were both stalled in the legislature and will have to be picked back up in the 2022 session.

Hawaii also continues to restrict hemp products, but not as severely as marijuana. Earlier this month, the state Department of Health adopted interim rules that govern hemp processing and sale. The rules ban the sale of hemp products with the exception of tinctures, tablets, capsules, powders and topicals and food to the extent the hemp or hemp derived product included in the food is generally recognized as safe by the FDA. This means CBD foods, gummies and beverages are prohibited, as well as smokeable hemp.

The rules make a clear distinction between botanically derived cannabinoids and synthetic cannabinoids (which are produced artificially and not derived from the cannabis plant). The rules prohibit the manufacture and sale of any products that include synthetic cannabinoids. Interestingly, the narrow definition of ‘synthetic cannabinoids’ in the rules does not cover Delta-8 THC that is botanically derived from the cannabis plant, even if the process itself is a chemical or synthetic process. So, any of the above permitted hemp products (tinctures, capsules, topicals etc.) may include botanically derived Delta-8 THC. The Department of Health’s permissive stance on botanically derived Delta-8 THC will likely prove beneficial to the hemp industry in Hawaii as other states seek to ban Delta-8 THC whether derived from the cannabis plant or otherwise.