Hidden in the funding bill to reopen the government was a provision that bans nearly all hemp-derived THC products.
The longest government shutdown in U.S. history ended not-so-climactically last week when Congress passed a short-term funding bill, which should keep the government running through January. Lost in the drama was a ride-along provision that former Senate Majority Leader Mitch McConnell (R., Ky.) had been trying to advance for years, previously without success. Now put into law, it threatens to destroy the $28 billion hemp industry that developed after Congress inadvertently legalized its products years ago.
As a longtime member of the Senate Committee on Agriculture, McConnell was intimately involved in drafting the 2018 farm bill. Representing one of the largest hemp-producing states in the country, McConnell secured a provision that legalized hemp production at the federal level. Before 2018, Kentucky farmers could only grow hemp under a research-only pilot program. By removing hemp from the controlled substances list, the intent was to legalize commercial production of CBD — a non-intoxicating substance extracted from hemp that is popularly used to treat ailments such as epilepsy, chronic pain, and anxiety.
The provision achieved its intended effect, creating a diverse market of CBD-based oils, tropicals, and edibles. But it also created a new market that Congress did not intend. The law defined newly legalized hemp products broadly, without expressly restricting all types of THC, the main psychoactive compound in cannabis that produces the “high” in users. Chemists soon realized that they could convert large volumes of hemp-derived CBD into a less potent version of THC called Delta-8, which could be put into products for a lighter intoxicating effect. Under the letter of the law, such products were now perfectly legal.
Companies began churning out a stunning variety of THC-infused gummies, beverages, vapes, oils, and lotions. Before long, these products were being sold in convenience stores and gas stations. They appealed to consumers by providing a less potent alternative to marijuana in states where it was illegal or heavily taxed and regulated. And they stoked demand for greater hemp production, making farmers dependent on millions of low-level psychoactive drug users.
Now, however, McConnell has finally closed the loophole that he himself opened. After a one-year grace period, legal hemp products will be limited to 0.4 milligrams of THC per container. The industry has denounced the limit as unreasonable, arguing that the vast majority of hemp products — including non-intoxicating ones — exceed that threshold.
Yet there is still room for regulatory creativity. The FDA will get to decide what exactly qualifies as a “container,” potentially allowing small products like edible gummies to have higher THC concentrations. Hemp producers have already started a lobbying blitz to win favorable treatment from the executive branch. The U.S. Hemp Roundtable announced its new mission: “365 days to regulate, NOT ban.”
Hemp also has some friends in the legislative branch who want to establish a statutory framework for THC-infused products. Representative Morgan Griffith (R., Va.) has drafted a bill that would legalize consumable and inhalable hemp products while putting them under the purview of the FDA. Facing possible extinction, a comprehensive system of federal regulation is now the best-case scenario for an industry used to operating without constraints.
Hemp farmers and consumers would be similarly relieved to see market regulation rather than blanket prohibition, knowing the latter would leave only a black market. The legal marijuana and alcohol industries, meanwhile, are predictably lobbying the government to crush their hemp-based competition.
Ideally, members of Congress will be the ones making these sorts of weighty decisions on hemp policy from now on. It is unfortunate that the nation’s representative body has never confronted the issue of hemp forthrightly, having legalized an entire industry by accident and banned it again through a backdoor legislative rider. If Congress ends its work there, it will be unelected regulators at the FDA who get to decide the parameters of the legal hemp industry from now on.