You can buy THC drinks at grocery stores, convenience stores, and online, because they are marketed as “hemp-derived.” But testing the drink itself generally cannot tell us whether that claim is true, or whether it actually contains marijuana.
That regulatory blind spot has helped intoxicating THC products move far beyond marijuana dispensaries and into ordinary stores.
The problem dates to the 2018 Farm Bill, which defined “hemp” as cannabis and its derivatives containing no more than 0.3% delta-9 THC by dry weight. Even so, the DEA has stated that cannabis derivatives exceeding that threshold are not hemp, even if they came from a compliant plant. In other words, a drink could contain 0.3% delta-9 THC while the ingredient used to make it exceeded 0.3% before dilution. If so, that ingredient would be considered marijuana.
My research team recently evaluated this problem in hundreds of delta-9 THC edibles marketed as federally lawful hemp. We calculated how much cannabis material containing the maximum legal concentration would be needed to supply each product’s advertised dose. For 80% of the products, that amount of cannabis could not physically fit inside the edible. The median product would have required cannabis material equal to 160% of the space available for non-sugar ingredients — a physical impossibility. Even under highly conservative assumptions, most products could not plausibly have obtained their labeled THC from lawful hemp.
There’s a reason people don’t make edibles using large amounts of low-THC cannabis: it would ruin the product texture and make them taste awful. Concentrated extracts solve that manufacturing problem.
THC beverages are harder still. Most of a drink is water, which is excluded from the dry-weight calculation. Testing can tell regulators how much THC is in the drink, but generally not how concentrated the ingredient was before dilution. Establishing that requires ingredient samples, batch records, or other credible evidence further up the supply chain.
A classification that has mattered enormously for where THC can be sold may be impossible to verify from the product on the shelf.
From a health perspective, that distinction matters even less. Delta-9 THC does not become less intoxicating because the package says “hemp-derived.” Strong evidence links THC use to psychosis, traffic crashes, and many other harms. Yet the “hemp” classification has helped move THC products outside marijuana dispensaries. Importantly, increased retail availability increases use and related harms. The stakes are not abstract: estimated cannabis poisonings presenting to U.S. emergency departments among children ages 0-11 increased an estimated 461% from 2018 to 2023.
Congress already enacted a way out. Public Law 119-37 allows finished products to contain no more than 0.4 milligrams of THC per container. Instead of forcing regulators to reconstruct how a product was made, the law gives them a threshold they can measure in the product being sold.
That fix is now under threat.
On Tuesday, the House voted to approve a spending bill that would delay the new restrictions until Dec. 11. That is a setback, especially because Congress already gave the law a full year before implementation. More concerning, lawmakers are also proposing permanent legal pathways for the very intoxicating products Congress just acted to restrict.
The Beverage Regulatory Parity Act is the clearest example. It would exempt qualifying THC beverages from the new per-container limit, allow up to 5 milligrams of intoxicating THC per serving, and permit more than 80 milligrams of THC in a 750-milliliter bottle. Intermediate material used to make those beverages could contain up to 20% total THC.
That is not simply regulating an existing market. It would establish a federal legal and commercial framework for intoxicating THC beverages that Congress had just acted to restrict.
The bill would also give qualifying cannabinoid beverages special treatment under federal food law, while directing federal officials, only after enactment, to study proper testing, THC-related impairment, serving sizes, and the appropriate amount of delta-9 THC per serving.
In other words, Congress would establish the market under special rules while key questions about dosing, testing, and impairment remain unresolved.
But even answering those questions first would not resolve the larger problem. Testing, labeling, and age restrictions can reduce some risks, but they cannot make THC non-intoxicating or eliminate the public health consequences of expanding its commercial availability.
Legitimate hemp farmers and businesses deserve clear rules protecting non-intoxicating products. But that does not require Congress to preserve an ordinary retail market for intoxicating THC.
I’M IN THE CANNABIS BUSINESS. DON’T BELIEVE THE HEMP LOBBY’S FLIP-FLOP ON ‘GAS STATION WEED’
Congress does not need to invent a solution to the regulatory blind spot. It has already enacted one. The current delay should remain temporary, and Public Law 119-37 should be allowed to take effect.
If a product contains enough THC to intoxicate consumers, public health protections should not depend on a claim regulators are unable to verify after the product has reached the shelf.
Matthew E. Rossheim, PhD, is an associate professor at a university in Texas. His research examines cannabis and other intoxicating consumer products and the policies that shape their availability, use, and harms.