On February 9, Attorney General William Tong sued five Connecticut retailers for violating the state’s Unfair Trade Practices Act (UTPA) by selling allegedly illegal delta-8 tetrahydrocannabinol (THC) products, many of which mimicked snack foods and candies popular among youth.

Tetrahydrocannabinol (THC) is typically associated with the high consumers feel when consuming marijuana products. Delta-8 THC is a naturally occurring chemical compound found in small traces in hemp and marijuana plants. Cannabidiol (CBD) in hemp can be chemically converted to produce THC, including delta-8 THC. Delta-8 THC is frequently infused into edibles and sold as a smokable concentrate in vape pens. Delta-8 THC produces psychoactive effects similar to those obtained from marijuana (read more about the rise in delta-8 THC products here). Because these products are derived from hemp, the federal Drug Enforcement Administration equates them with federally-legal hemp products so long as they do not contain more than 0.3% delta-9 THC. Under Connecticut law, however, products containing more than 0.3% total THC on a dry weight basis are cannabis (marijuana) products governed by Connecticut’s Responsible and Equitable Regulation of Adult-Use Cannabis Act (RERACA), which requires they only be sold by licensed marijuana dispensaries.

The AG’s office made a series of unannounced visits to vape shops and gas stations in December 2022 and found delta-8 THC products for sale at every vape shop it visited, as well as one gas station. In the summons to Raheem Mini Mart, the AG’s office alleged that, among other things, (1) products found at the retail location contained THC levels exceeding 0.3%; (2) the retailer did not hold a retail cannabis establishment license; (3) the packaging did not meet RERACA standards for cannabis products nor included the proper warning labels; and (4) the products were not cultivated or produced in Connecticut’s Department of Consumer Protection-licensed facilities. The AG claimed the defendant violated the UTPA by misleading Connecticut consumers to believe that it “legally” sold delta-8 products, while further violating RERACA public policy to promote a safe, regulated cannabis market. Consequently, the AG sought to enjoin the retailer from further violations, as well as civil penalties, disgorgement of related profits, restitution, attorneys’ fees, lawsuit costs, and any other relief the court deems appropriate.

In addition to the five lawsuits, AG Tong also began sending warning letters to all Connecticut-licensed electronic vaping retailers, putting them on notice that many products purporting to contain delta-8 THC and sold in state retail shops may be illegal. The AG cautioned that these products may not meet the packaging, testing, and labeling safeguards established to ensure safe production and cannabis product sales in the state. In particular, packaging often appealing to minors mimicked popular snack foods, increasing the risk that children could consume them.

Why It Matters

As the popularity of delta-8 THC products continues to grow, state AGs renew their concern over the risks associated with unregulated, hemp-derived products with high amounts of THC, especially regarding the unintentional ingestion of these products by children. The FDA also published a May 2022 consumer update, warning about the potential negative health effects of these products. Absent any comprehensive federal legislation, we will likely see increased regulation of hemp-derived THC products at the state level, along with state AG-related enforcement actions.

Our Cannabis Practice provides advice on issues related to applicable federal and state law. Marijuana remains an illegal controlled substance under federal law.