States grapple with regulating seltzer drinks with THC
New Orleans is known as a hard-drinking town, but certain bars and bodegas now also offer a nonalcoholic alternative—seltzers with THC, the intoxicating component of cannabis.
Products like Louie Louie, sold in 12-ounce cans with 5 milligrams each of THC and CBD, are available in Louisiana and other states. The beverage brand launched in New Orleans after Louisiana changed its laws to allow low-dose THC products to be sold with other age-restricted offerings.
That was four years after Congress passed the Agriculture Improvement Act. Known as the Farm Bill of 2018, it legalized hemp with 0.3% THC or less on a dry weight basis, removing it from the Schedule I list. Regulation is left to the states, which has led to a patchwork of rules. According to Forbes, THC seltzers are legal in 37 states and Washington, D.C. But lawyers interviewed by the ABA Journal say state-level regulation for the products is often in flux.
“States are debating where to put in regulations on how to manage the hemp: Where can it be sold? Can it be sold near churches and schools? How to ensure safety checks? Who are these brands advertising to? It’s all uncharted territory for everyone,” says Erica Lindsay, an attorney, pharmacist, former deputy director of the Illinois Medical Cannabis Unit and vice chair of the ABA Health Law Section’s Health Law Policy and Coordinating Committee.
Eric Becker, a Louie Louie co-founder, also is a lawyer.
“There are lots of states embroiled in lengthy regulatory processes and sometimes lawsuits. It’s ever-changing,” says Becker, also a member of the Hemp Beverage Alliance, an industry trade association. “Even in states that have allowed it, there have been years after years of changes. But this is to be expected in a highly regulated market. If you don’t expect it, then you’re naïve.”
Louisiana, which legalized hemp in 2019, later created legislation allowing low-dose THC seltzers to be sold. It passed in 2022. It also created what is known as the consumable hemp program, which falls under the state’s Department of Health and the Office of Alcohol and Tobacco Control.
While no two states are alike, common regulatory requirements for hemp-derived THC beverages often include restricting sales to people age 21 and over, lab testing and prohibitions on adding THC to alcoholic beverages, says Christine Dower, a beverage and cannabis attorney at McDermott Will & Emery.
“Another thing we’re seeing states grapple with is making sure the amount of low-dose hemp-based THC is actually within the 0.3% on a dry weight threshold. I think industry members are taking lenient views of what that means in terms of if it’s per serving or per package,” the Washington, D.C., lawyer adds.
Notably, certain states where cannabis is legal have banned low-dose, hemp-derived THC products, confining them to licensed cannabis dispensaries.
In California, for instance, some say Gov. Gavin Newsom “killed” the growing THC beverage industry when he issued emergency regulations in September that held the products could be sold only in licensed dispensaries.
In response, the U.S. Hemp Roundtable and several companies filed a lawsuit in Los Angeles County Superior Court arguing that the emergency regulations violated the state and federal constitutions.
The plaintiffs dropped the lawsuit in November. The ban was set to expire in March, but the California Department of Public Health filed a motion extending it to June. The ban can be extended only one more time after that.
“Our children deserve protection,” California Attorney General Rob Bonta said in an October press release. “We are witnessing an alarming rise in products that contain synthesized cannabinoids, which can be far more intoxicating than the legal and regulated cannabis options available.”
In Illinois, the state senate considered regulation in 2024 that would have required breweries and distilleries making THC seltzer to operate under the same licensing requirements as dispensaries. No action was taken on the proposal.
As controversy ensues across the states, some say low-THC products should be outlawed completely.
“The products exploit a legal loophole in the 2018 Farm Bill, allowing sale even in states where recreational marijuana remains illegal,” says Bertha Madras, a Harvard Medical School psychobiology professor who has testified in multiple state and federal legislatures. She also has served as an expert witness on behalf of the Department of Justice.
According to Madras, the loophole involves CBD from hemp. It is legal and nonpsychoactive, but it can be converted chemically to what’s known as 8-THC or delta-8, which is psychoactive. The converted product is sold legally as hemp.
Additionally, Madras says THC seltzers come with health challenges, including impaired motor function and judgment as well as a risk of nausea with overconsumption.
“From my perspective, this product should be banned because with the Farm Bill, it makes the psychoactive constituent of marijuana legal and unregulated in many states. Also, what is to stop a person from consuming a six-pack and getting extremely high THC levels in their system?” she asks.
According to Becker, the beverages are less risky than THC-infused gummies with respect to underage or accidental consumption, and they don’t have inhalation-related health concerns.
“That said, there are brands and operators continuing to irresponsibly market their products, and some make use of a less well known and studied alternative: lab-created cannabinoids,” Becker adds.
Louisiana’s hemp industry came under fire in 2024 when Republican state Sen. Thomas Pressly introduced a bill to recriminalize hemp products. The senator’s stance amplified the tension between the state and the federal government.
The house voted down the total ban, and the hemp category in Louisiana was kept alive. But with victory came restrictions capping THC levels are at 5 milligrams for a minimum size of 12 ounces.
Additionally, the packaging limitation is now four servings, which Becker says “limits packaging options, including the traditional ‘six pack.’”
Only businesses that got consumable hemp permits before June 2024 can sell the products to consumers.
“As responsible operators in the space, we crave a regulatory structure that provides needed safeguards for consumers and makes operators play by the same set of rules, but [we] find it very hard to keep changing how we do business as the picture comes together piece by piece,” Becker says.
At the federal level, Congress in December enacted a one-year extension of the Farm Bill. So far, the federal government has focused on health claims and products that appeal to children, says Alva Mather, the global head of McDermott Will & Emery’s regulatory practice group.
“We’re seeing warning letters—essentially cease and desist letters—from the [Food and Drug Administration] and [Federal Trade Commission] around marketing and advertising,” she says.
“It’s very health- and consumer protection-focused, and enforcement efforts are focused on egregious health claims as well as products that are deceptively similar to existing children’s brands. When we advise clients in this space, we recommend top of mind should be not engaging in overreaching, misleading or false advertising.”
This story was originally published in the June-July 2025 issue of the ABA Journal under the headline: “Dank Drinks: As states allow the sale of seltzer drinks with THC, regulation is often in flux.”
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