Delta-8 & the 2018 Farm Bill Loophole

Last verified: April 2026

The Federal Foundation

The 2018 Agriculture Improvement Act (the “Farm Bill”) removed industrial hemp from the federal Controlled Substances Act and defined legal hemp as cannabis containing not more than 0.3% delta-9 THC by dry weight. The bill was written to enable industrial fiber and CBD markets — not psychoactive products — but the by-dry-weight, delta-9-only test created a definitional gap. Cannabinoids that are not delta-9 (such as delta-8 THC), or that are present at low concentrations by weight in a heavy gummy or beverage, fall outside the statutory ceiling even when they deliver substantial intoxicating doses.

How Indiana Codified the Loophole

Indiana SEA 52 (2018), signed by Gov. Eric Holcomb on March 21, 2018, legalized low-THC hemp extract in Indiana. The bill was a direct response to Indiana State Excise Police raids on Fresh Thyme and other CBD retailers in 2017 and 2018. The conference report passed the Senate 36-11.

Indiana SEA 516 (2019) built out the commercial hemp framework, codified at IC 15-15-13 (the Industrial Hemp chapter). SEA 516 aligned Indiana’s hemp definition with the Farm Bill, removed hemp from the state controlled substances list, and established licensing under the Office of Indiana State Chemist (OISC) at Purdue University. SEA 516 simultaneously criminalized smokable hemp at IC 35-48-4-10.1 — see the smokable hemp fight.

The Product Universe

Because the Farm Bill measured legality only by delta-9 THC content, the door opened to a long list of hemp-derived intoxicating products:

• Delta-8 THC — semi-synthetic isomer of delta-9, mildly intoxicating; usually produced by isomerizing CBD distillate
• Delta-10 THC — another isomer, similar method
• THC-O acetate — synthetically converted, more potent than delta-9
• HHC and HHC-O — hexahydrocannabinol and its acetate variant
• THCP (tetrahydrocannabiphorol) — very potent
• Hemp-derived Delta-9 edibles — gummies, beverages, and chocolates with ≤ 0.3% delta-9 by dry weight, which can deliver 10–100 mg active THC per package

The Indiana Operators

Indiana hosts two of the largest US hemp-cannabinoid manufacturers:

• 3Chi — Indianapolis-based, founded by chemist Justin Journay; widely credited with launching the modern Delta-8 market
• Earthshine Labs — Bloomington-based hemp and cannabinoid manufacturer

A 2023 Whitney Economics study found roughly 540 retail stores and nearly 1,400 gas stations in Indiana sold approximately $637 million in hemp-derived cannabinoid products. Distribution is concentrated in convenience chains (Speedway, Circle K, Casey’s, GetGo, Family Express), independent vape and smoke shops, and dedicated CBD/hemp boutiques. A Bloomington shop estimated 45% of total sales revolve around Delta-8.

Indiana has effectively codified the federal Farm Bill loophole. Delta-8, Delta-10, THC-O, HHC, and hemp-derived Delta-9 edibles are technically legal under Indiana statute. Smokable hemp and Delta-8 vape cartridges are illegal at retail under IC 35-48-4-10.1 but widely sold.

Whitney Economics, 2023 Indiana Hemp Market Study

AG Rokita’s Official Opinion 2023-1

In June 2023, Indiana Attorney General Todd Rokita issued Official Opinion 2023-1, declaring that Delta-8 THC constitutes a Schedule I controlled substance under IC 35-48-2-4(d)(32). Rokita’s reasoning: Indiana’s controlled-substances statute does not distinguish THC isomers based on whether they were derived from hemp or from marijuana, and SEA 52 / SEA 516 only legalized hemp’s low-delta-9 form — not converted isomers.

The opinion is non-binding. AG opinions advise state agencies but do not carry the force of statute. 3Chi sued, alleging Rokita’s opinion conflicts with the Farm Bill’s express federal framework and with SEA 52’s legalization of hemp-derived products. The litigation has produced no definitive Indiana appellate ruling.

Uneven Enforcement

Indiana has 92 county prosecutors. Each makes independent charging decisions. The result is a patchwork:

• Indianapolis Metropolitan Police have publicly stated they are not pursuing retailers based on Rokita’s opinion. Marion County Prosecutor Ryan Mears’s broader non-prosecution posture on simple marijuana possession overlaps.
• Some county prosecutors have ordered local retailers to pull Delta-8 products following the AG opinion. Specific counties have varied by year.
• Indiana State Police conducted a 2024 investigation that found many Delta-8 products in Indiana exceeded the 0.3% delta-9 ceiling — a finding that, if widely tested, would put many retailers in violation regardless of Rokita’s isomer argument.

The Legal Posture in One Chart

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