In a recent opinion, the Arizona Attorney General tried to settle an ongoing controversy regarding the legality of “hemp-synthesized” intoxicants by declaring businesses that sell such products, without being duly licensed by the Arizona Department of Health Services to transact in “marijuana,” are engaging in illegal conduct under Arizona law. What does this mean for gas stations, convenience stores, tobacco shops, and many other businesses selling these products?

What are “Hemp-Synthesized” Intoxicants?

While hemp-synthesized intoxicants may be a foreign term to many, the regulation of ingestible products containing such intoxicants (i.e., Delta-8, Delta-10, and THC-O acetate) has been a hot-button issue for legislators, regulators, health officials, and law enforcement in Arizona and across the nation. So where do these intoxicants come from?

“Hemp” and “marijuana” are legal fictions used to distinguish between plants of the species Cannabis sativa. While marijuana remains illegal federally, Congress passed legislation in 2014 and 2018—commonly referenced as the “Farm Bill”—that authorized the commercial cultivation and production of hemp containing less than 0.3% Delta-9 THC threshold (i.e., the primary psychoactive agent in “marijuana”) within certain parameters.

Since the legalization of hemp, various groups have developed or refined a synthesizing process to convert non-psychoactive cannabinoids such as CBD from federally legal hemp to psychoactive agents that could otherwise qualify as federally illegal marijuana. The problem is Congress first crafted the Hemp Bill with industrial and agricultural purposes in mind, meaning the legislation does not contemplate ingestible uses of hemp or further modifications as intoxicating agents.

The Farm Bill’s silence on hemp-synthesized intoxicants created a perceived “loophole” that companies outside of state-regulated marijuana programs relied on to convert CBD into non-industrial hemp derivatives for sale to the public. These derivatives are sometimes called “diet weed” and can be found in gummies, vape cartridges, tinctures, and other products.

What is the legal status of hemp in Arizona?

The legality of hemp-synthesized intoxicants remains an ongoing issue in Arizona, with differing opinions on the appropriate way to bridge the “loophole” created by the Farm Bill. From Senate Bill 1466 (2023) to Senate Bill 1271 (2024), various stakeholders on opposing sides of the hemp debate have lobbied the state legislature on these issues, with some promoting a complete ban on hemp-synthesized intoxicants (outside the regulated marijuana program), while others are pushing for alternative licensing regimes to ensure the survival of the industry. As it stands, none of these efforts have come to fruition.

Yet despite the state legalization of marijuana in Arizona, there is no apparent shortage of producers willing to undertake the risks of producing Delta-8 and similar products outside the regulated program. The rise in “diet weed” production may be partially driven by the initial success of the state’s lucrative marijuana programs, the high costs of market entry in the marijuana program, and the wide availability of CBD at discounted rates.

Opponents of hemp-synthesized intoxicants often cite the health concerns and ease of access to minors that are echoed in the Attorney General’s opinion, including the use of potentially unsafe household chemicals to make these products. The hemp derivative industry, on the other hand, argues for its right to continue producing these products to equalize the perceived market barriers created by the state’s marijuana programs.

Against this uncertain backdrop, state senators Steve Montenegro and T.J. Shope requested Attorney General Kris Mayes to comment on the legality of hemp derivatives in Arizona.

What is the Attorney General’s opinion on hemp?

Mayes states in no uncertain words that “delta-8 and other hemp-synthesized intoxicants cannot be legally sold by entities that are not licensed cannabis sellers.” Mayes further cautions her opinion “should not be construed as a general endorsement of the sale of hemp-synthesized intoxicants by licensed cannabis sellers.”

The basis for the opinion appears grounded in the following critical findings:

• While the Hemp Bill arguably permits (federally) the production of hemp-synthesized intoxicants, the bill also authorizes states to enact more stringent controls over the production of hemp.
• Arizona’s hemp program is “industrial” in nature and emphasizes the state’s continuing “strict” regulation and control of marijuana.
• Arizona’s legal definitions of marijuana and cannabis are broad and encompass hemp derivatives, including correlating provisions under criminal statutes.
• Unlike the federal definition of hemp, Arizona doesn’t include “derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers” (e., the loophole), reaffirming the industrial nature of the product.
• Arizona’s definition of hemp products excludes “any product made to be ingested except food made from sterile hemp seed or hemp seed oil,” meaning gummies and other consumable products are prohibited.

Mayes’s opinion has received mixed reviews since its publication. While some applaud its rationale, others view it as circumventing pending legislative reform efforts. But no matter where you stand, the opinion has real implications for Arizona businesses currently engaging in the production and sale of hemp-synthesized intoxicants outside of regulated marijuana programs.

What does the future hold for hemp in Arizona?

Attorney general opinions are not legally binding, meaning the state of law in Arizona remains the same. Nonetheless, the opinion clarifies the state’s interpretation of the legality of products like Delta-8 and an affirmation of Mayes’s intent to potentially seek enforcement actions against companies not conforming to such interpretation.

Notably, the focus of Mayes’s opinion on the synthetic types of “diet weed” also potentially leaves out other products such as THCa (tetrahydrocannabinolic acid), which isn’t made from a conversion process and not psychoactive until exposed to heat (by smoking). In other words, the opinion is not all-encompassing and arguably doesn’t fully address the hemp derivative issues in Arizona.

So the hemp debate is far from settled and future legislative or regulatory action is still required to provide certainty on these issues. Considering the effect of Mayes’s opinion, change and future state action may be on the horizon.

In these uncertain times, Arizona businesses engaged in the production or sale of hemp-synthesized intoxicants must be vigilant to avoid enforcement actions by the state. If you are one of these businesses, you should seek counsel familiar with the various pitfalls of conflicting laws to navigate the arena.