On September 9, 2025, the Appellate Court of Maryland issued a significant ruling, in Moore v. Maryland Hemp Coalition, declaring that psychoactive products derived from hemp, such as delta-8 and delta-10 THC, are illegal under Maryland law.
Background
The case originated in July 2023, when the Maryland Hemp Coalition and several of its members challenged provisions of the state’s Cannabis Reform Act, which legalized adult-use marijuana while imposing strict licensing requirements. Significantly, the Act also bans the sale of most hemp-derived psychoactive products by prohibiting products “not derived from naturally occurring biologically active chemical constituents.”[i] Because delta-8 and delta-10 products are typically produced by chemically converting hemp-derived CBD, they fall within this ban.
The plaintiffs argued that hemp businesses had long operated lawfully in Maryland and that the new framework unlawfully excluded them, particularly through social equity licensing provisions. In October 2023, a lower court sided with the hemp industry, granting a limited injunction that blocked enforcement of certain cannabis law provisions affecting hemp-derived products.
The Appellate Decision in Maryland
In a 70-page opinion, the appellate panel reversed the lower court’s ruling and held:[ii]
- Illegality of Hemp-Derived Psychoactive Products: “Hemp-derived psychoactive products, so-called delta-8 and delta-10 THC, are now and have always been illegal in Maryland,” Judge Dan Friedman wrote for the majority. The court emphasized that lax enforcement does not establish legality.
- No “Common Right” to Market Participation: The court rejected claims that hemp businesses had a constitutional or common law right to sell hemp-derived psychoactive products, finding no historical basis for such a right under federal or Maryland law.
- Licensing Requirements Upheld: The court affirmed that Maryland’s licensing requirements, including numerical limits and prioritization of social equity applicants, are reasonably required to protect public health and remedy past discrimination.
Key Implications
- Hemp businesses in Maryland should immediately assess their compliance posture. The decision confirms that products containing delta-8, delta-10, and other hemp-derived psychoactive cannabinoids cannot be sold in the state.
- Regulators retain full authority to enforce licensing limits on cannabis retail sales, regardless of whether the products are derived from marijuana or hemp.
- The ruling reinforces the state’s commitment to its social equity licensing framework, signaling continued emphasis on remedying harms from past prohibition.
Federal Law and the Regulation of Delta-8 THC
Contrary to what was claimed by the Maryland plaintiffs, Federal law did not establish that there was a common right to engage in the limited hemp-derived psychoactive products market prior to the enactment of the Cannabis Reform Act. The 2018 Agriculture Improvement Act of 2018 (2018 Farm Bill) excluded hemp from the federal Controlled Substances Act’s (CSA) definition of marijuana by defining it as:
“Cannabis sativa L. and any part of the plant, including derivatives, extracts, cannabinoids, and isomers, provided the delta-9 tetrahydrocannabinol (THC) concentration does not exceed 0.3% on a dry weight basis.[iii]”
Under both the Farm Bill and USDA’s Final Rule, an isomer of a cannabinoid derived from hemp is included within this definition.
Delta-8 THC is not present in hemp in meaningful concentrations. Instead, it is generally produced by chemically converting cannabidiol (CBD) extracted and purified from hemp. In chemical terms, delta-8 THC is a structural isomer of CBD, as both compounds share the molecular formula, C₂₁H₃₀O₂, but differ only in relative structural arrangement and properties.[iv] Because delta-8 derived from hemp-based CBD is an “isomer” of hemp, it falls within this definition of hemp, provided it meets the statutory delta-9 THC concentration threshold.[v]
In this regard, the Ninth Circuit held that the source of the product, rather than the method of manufacture, determines whether it qualifies as hemp under federal law.[vi] [vii] This means that a hemp derivative such as delta-8 THC meets the federal definition of hemp even though it is not directly derived from hemp but instead from a substance (CBD) derived from hemp.
This ruling dismayed critics of psychoactive hemp products, including the U.S. Drug Enforcement Administration (DEA), who claimed that it was not the intent of the drafters of the Farm Bill to permit psychoactive products to be derived from hemp. But the court in AK Futures found that since the plain language of the Farm Bill supports the conclusion that delta-8 is a lawful hemp derivative, there is no need to look to the ‘intent’ of the Farm Bill.
While the DEA’s position is that all synthetically derived tetrahydrocannabinols—including delta-8 THC—remain Schedule I controlled substances under the CSA, [viii] it has never squarely addressed whether converting hemp-derived CBD into delta-8 THC through isomerization qualifies as a synthetic process. As one commentator observed, a synthetic material, in its plain meaning, is a substance produced by chemical or biochemical synthesis. Accordingly, delta-8 THC produced through such chemical conversion, even when derived from lawful hemp-derived CBD, could fall within what the DEA considers a controlled substance.
While regulatory ambiguity persists at the federal level, states have responded in divergent ways. Some states, like Maryland, have moved to ban hemp-derived psychoactive products outright, while others have chosen to regulate their production and sale—and with that, capture significant benefits, including hundreds of millions of dollars in tax-generated revenue, expanded consumer safety oversight, support for local agricultural and retail industries, and the ability to channel products into a regulated rather than illicit marketplace.
The Regulation of Cannabis-Derived Food Products
Another point of reflection is that just because certain hemp-derived substances may not be unlawful to produce under federal law doesn’t mean that they can be lawfully added to consumer products. The legalization of hemp and hemp-derived products under federal law does not override the FDA’s authority to regulate food additives and drugs.
Notwithstanding the Farm Bill, hemp-derived compounds such as CBD and THC may not lawfully be added to foods or dietary supplements, as they have not been designated as GRAS or approved as New Dietary Ingredients by the FDA. Additionally, when a substance is an active ingredient in an FDA-approved drug or has been the subject of substantial clinical investigations, its use in food products or dietary supplements is also restricted. This is the case with CBD, which is the active ingredient of an FDA-approved drug, Epidiolex®.
The FDA has made clear that delta-8 THC products, including gummies and other edibles, have not been evaluated or approved for safe use in any context. FDA has issued consumer warnings and enforcement letters against companies marketing delta-8 products as food or dietary supplements, emphasizing that such sales violate the Federal Food, Drug, and Cosmetic Act (FDCA).
As part of its oversight, FDA has issued a steady stream of warning letters in recent years to companies marketing these products in ways the agency views as unlawful—particularly when products are promoted with therapeutic or medical claims. So far in 2025, FDA has issued multiple warning letters to firms selling CBD and delta-8 products online, including edibles.[ix] Nevertheless, many states permit the sale of these products under state laws.
Regulation at the State Level
As of this writing, thirty-five states allow delta-8 THC in some form, either through express legalization or regulation. Fifteen states have enacted complete prohibitions, while thirteen others permit sales under regulatory frameworks. These figures remain in flux, however, as a number of states are actively considering legislation that would either impose new restrictions or ban delta-8 altogether.
Navigating Compliance to Protect and Grow Your Business
Despite FDA’s determination, hemp-derived products such as CBD, delta-9 THC and delta-8 THC products continue to be widely marketed and sold in both food and dietary supplements nationwide in what is now a multi-billion-dollar industry across dozens of states. Revenue in the CBD products market in the United States is forecasted to hit US$3.04bn in 2025 alone,[x] while the cannabinoid retail market in Texas alone is estimated to generate over $5.5 billion in annual sales.[xi] These numbers underscore both the scale of the industry and the stakes for operators and regulators alike.
At Frier Levitt, we understand the challenges of operating in a fast-evolving national cannabis and hemp market. Remaining compliant requires not only awareness of federal standards but also careful navigation of nuanced state-level rules. Our team works closely with businesses to evaluate product portfolios, marketing practices, and licensing strategies in light of shifting laws and enforcement trends. By combining deep regulatory knowledge with practical industry insight, we provide tailored guidance that helps clients reduce risk, protect their brands, and conduct their business with clarity and confidence in this highly regulated and changing environment. Contact us for assistance.
Frier Levitt provides strategic, industry-focused legal counsel tailored to your needs. Contact our team today to learn how we can help you.
[i] AB § 36-1102(c)
[ii] The case is Governor Wes Moore, et al. v. Maryland Hemp Coalition, Inc., et al., Case No. ACM-REG-1590-2023, in the Appellate Court of Maryland. Counsel for the hemp interests may seek further review, but as of this decision, hemp-derived psychoactive products remain prohibited in Maryland.
[iii] 7 USCS § 1639o
[iv] Edgar Asebey, Guilherme Ferrari, The Legal Guide to the Business of Marijuana: Cannabis, Hemp, and CBD Regulation, 16:24, Practicing law Institute Press.
[v] In AK Futures LLC v. Boyd St. Distro, the Ninth Circuit held that delta-8 THC products derived from hemp fall within the Farm Bill’s definition of “hemp” and are excluded from the CSA’s definition of “marijuana,” provided they contain no more than 0.3% delta-9 THC on a dry-weight basis. AK Futures LLC v. Boyd St. Distro, LLC, 35 F.4th 682.
[vi] Id at 692 (“[L]anguage suggests the source of the product—not the method of manufacture—is the dispositive factor for ascertaining whether a product is synthetic.”).
[vii] See also Zini v. City of Jerseyville (S.D. Ill. Mar. 30, 2024) at *16.
[viii] U.S. Drug Enf’t Admin., Letter to Donna C. Yeatman, R.Ph., Exec. Sec’y, Ala. Bd. of Pharmacy, re: Control Status of Delta-8-Tetrahydrocannabinol under the Controlled Substances Act (Sept. 15, 2021).
[ix] https://www.fda.gov/news-events/public-health-focus/warning-letters-cannabis-derived-products
[x] https://www.statista.com/outlook/hmo/cannabis/cbd-products/united-states
[xi] https://www.cannabisbusinesstimes.com/us-states/texas/news/15741185/new-report-reveals-texas-hemp-market-contributes-10-billion-to-state-economy
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