With the start of a new year and a January 7 decision of the U.S. Court of Appeals for the Fourth Circuit addressing the interplay between federal and state hemp regulation, it seemed timely to provide an update on the status of hemp-derived cannabinoids in Michigan. This is the first of two posts on this topic.

As any reader of this blog undoubtedly knows, the federal Agriculture Improvement Act of 2018 (the “Farm Bill”) excluded hemp from the federal Controlled Substances Act’s definition of marijuana. The Farm Bill legalized cannabis plants and “all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3% on a dry weight basis.” 7 USC 1639o.

In the years since, thousands of products have proliferated across the country based on claims that they were made “legal” by the Farm Bill. Most are sold for their intoxicating properties, with many marketed using common marijuana strain names or even as “legal” marijuana. At the consumer level, we typically see three types of these products:

1. Products that contain intoxicating cannabinoids other than Delta-9 THC, such as Delta-8 THC, THCa, HHC, etc. The primary argument for the legality of these products is that the Farm Bill’s limitation on THC applies only to Delta-9 THC, so the lack of a limit on other cannabinoids renders them completely legal.
2. Products that contain Delta-9 THC that have been synthesized from extracts from legal hemp plants. The argument for these products is that the plant qualified as hemp, and the exemption extends to all derivatives and extracts made from that hemp.
3. Products that contain Delta-9 THC but at less than a 0.3% dry weight concentration.

At the manufacturer level, we most commonly see or are asked about the first two categories of products. In Michigan, the Cannabis Regulatory Agency (“CRA”) has reported finding hundreds of kilograms of THCa isolate at licensed processors.

Not long after the Farm Bill passed, a wave of unregulated Delta-8 THC products began sweeping the country. Often found at convenience stores and gas stations, they were frequently sold to minors. Press reports highlighted after-market testing that revealed contaminants and high concentrations of Delta-9 THC, which means that many of these products were federally illegal as they were not “hemp” under the Farm Bill.

In 2021, Michigan was at the leading edge of states that amended legislative definitions of hemp and marijuana in response to Delta-8 products. While maintaining a 0.3% threshold, Michigan now defines THC as either (1) tetrahydrocannabinolic acid (THCa) or (2) unless excluded by rule, any tetrahydrocannabinol (THC), regardless of whether it is artificially or naturally derived, and any structural, optical, or geometric isomer of THC.

Concerned about the fact that a candy Peep could contain 20mg of Delta-9 THC and still be considered hemp, the Michigan legislature also took action to prevent intoxicating edibles that were under the 0.3% threshold. The Legislature mandated that CRA promulgate rules to set a limit on the total amount of THC allowed in consumables. Last November, CRA released draft administrative rules that would (A) set THC limits of 1.75 mg per serving and 10 mg per package and (B) require a CBD:THC ratio of no less than 15:1 on those products.

Even though Michigan’s statutory definitions are unambiguous, our attorneys frequently field questions about the legality of THCa, Delta-9 THC derived from hemp, or products containing other cannabinoids. THCa isolate and any THC derived from hemp plants or extracts are unquestionably marijuana under Michigan law. On the other hand, the CRA has confirmed that HHC, THCV, and THCP are not THC under Michigan law—although that hasn’t stopped the Michigan State Police from seizing these legal products. (Note, however, that edibles containing these substances would be noncompliant with Michigan’s Food Law, just like they are at the federal level.)

We often hear that attorneys for purveyors of THCa, Delta-8 THC, and other cannabinoid products claim Michigan law doesn’t matter because THCa and these products are hemp under federal law, and federal law trumps state law. For the first point, they cite last September’s Fourth Circuit U.S. Court of Appeals ruling in Anderson v Diamondback Investment Group and the 2022 decision of the Ninth Circuit in AK Futures LLC v Boyd Street Distro, LLC. In each of these cases, the federal appellate courts held that cannabinoids synthesized from compliant hemp plants are hemp under the federal definition as long as the end product has less than 0.3% Delta-9 THC.

In my personal view, the Anderson and AK Futures decisions are correct on the law. The cannabinoids specifically addressed by the two courts were Delta-8, Delta-10, THC-O, and HHC. While the logic of the decisions naturally extends to other cannabinoids, THCa is the one possible exception. The Farm Bill expressly requires that testing of Delta-9 THC levels be done “using postdecarboxylation or other similarly reliable methods.” 7 USC 297B(a)(2)(A)(ii) (emphasis added). Postdecarboxylation testing necessarily requires that THCa be factored into the Delta-9 calculation. Whether THCa is legal under the Farm Bill thus requires a different analysis than for any other cannabinoid.

Even if THCa is hemp under federal law, though, this does not mean that the federal definition trumps any narrower state law definitions. On January 7, 2025, the Fourth Circuit issued a decision in Northern Virginia Hemp and Agriculture v Virginia, in which the court found the plaintiffs unlikely to succeed on a claim that the Farm Bill preempted total THC limits set by Virginia. Like Michigan, Virginia broadened its definition of THC to encompass other tetrahydrocannabinols beyond just Delta-9 THC. Unsurprisingly, the court, in part, relied on the Farm Bill’s explicit statement that “Nothing in this subsection preempts or limits any law of a State… that (i) regulates the production of hemp; and (ii) is more stringent than this subtitle.” 7 USC 297B(3)(A). In other words, the very law that some rely upon to conclude that THCa is legal says that a state may have more stringent standards.

It’s worth noting as well that the Farm Bill incorporates state implementation plans for hemp production as a requirement, and Michigan’s statutory definitions make it a violation of the state implementation plan for a hemp company to have THCa. The Farm Bill requires that if the state finds a hemp producer to be violating the plan through any intent beyond simple negligence (like having slightly “hot” plants), the state must report the matter to the United States Attorney General and the Michigan Attorney General. In addition to penalties under Michigan law, intentionally violating the state hemp implementation plan is a federal felony.

While it may be true that federal enforcement on THCa has been basically nonexistent, CRA is very much aware of THCa coming into the state in bricks. Because THCa is marijuana under state law and was produced outside of the state’s cannabis laws, CRA is mounting a significant enforcement initiative against marijuana processors and others who are found to have THCa in their possession, with the assistance of Michigan State Police. Also, in October of last year, the Michigan Court of Appeals ruled that state felony charges can still be brought in cases involving possession with intent to deliver marijuana. As a result, unlicensed marijuana growers and producers pursuing commercial activities face felony criminal exposure. Although it remains to be seen how Michigan law enforcement agencies will utilize these enforcement mechanisms, the risk for those engaged in the commerce of hemp-derived cannabinoids has certainly increased.

Finally, Michigan agencies and legislators have also turned their attention to intoxicating hemp products that are not THC. Legislation was introduced at the end of the 2023-2024 session that will undoubtedly be the model for a legislative effort this year. That package of bills will be the subject of Part 2. Check back with Dykema’s Cannabis Law Blog for coverage.