Senate Passes Federal Ban on Intoxicating Hemp Products: What It Means for the Hemp Industry
Earlier this week, the U.S. Senate passed a federal ban on products containing hemp-derived cannabinoids like Delta-8 THC and THCA as part of legislation to end the government shutdown. The bipartisan bill to fund the government passed 60-40 after an amendment to remove the hemp ban failed 76-24. The House of Representatives is set to vote on the bill later this week.
If signed into law, this legislation would dramatically reshape the multibillion dollar hemp industry across the nation, including in states like Georgia that have already passed comprehensive legislation to regulate hemp products containing CBD and THC.
Specifically, the bill would ban a wide range of hemp products by changing the federal definition of “hemp” to exclude certain hemp-derived cannabinoids and hemp-infused products that have become popular since Congress legalized hemp in the 2018 Federal Farm Bill. Supporters of the proposed ban have stated that their intent is to close a “loophole” in the Farm Bill that allowed the sale and manufacture of hemp products containing lesser known, intoxicating cannabinoids like Delta-8-THC and THCA.
While President Trump had previously expressed support for hemp products and marijuana rescheduling in the past, he recently indicated that he “supports the current language in the bill on hemp.” Accordingly, hemp businesses and other stakeholders should familiarize themselves with the bill, explained in detail below, and be prepared to comply with its new regulations and prohibitions.
Current Hemp Laws Under the 2018 Farm Bill
In 2018, President Trump signed the 2018 Federal Farm Bill into law, landmark legislation that legalized a wide range of cannabis and cannabis products by excluding “hemp” from the definition of “marijuana” and “THC,” both of which remain controlled substances under federal law.
Under current law, “hemp” is broadly defined to include any cannabis plant, and any part of the plant, derivative, extract, or cannabinoid from the plant, that contains 0.3% or less of “Delta-9-THC,” the cannabinoid most commonly known for giving users a “high.”
The cannabis plant naturally produces over a hundred cannabinoids, including non-intoxicating cannabinoids like CBD and CBG as well as intoxicating cannabinoids like Delta-8-THC, HHC, THCA, and THCV. Marijuana and hemp have the same cannabinoids but produce them in different quantities. Hemp produces more CBD; marijuana produces more THC.
All of these cannabinoids can be extracted from either plant through chemical processes. When it comes to hemp-derived cannabinoids, CBD is extracted from the hemp plant directly and processed into a concentrated form. Hemp-derived CBD can then be synthesized into Delta-8-THC, HHC, and other “minor cannabinoids” through a series of chemical conversions.
The Farm Bill’s broad language legalized the sale and possession of a variety of cannabis products containing hemp-derived cannabinoids, including vapes, edibles, flower, oils, wax, and other products resembling illegal marijuana and THC products, as long as the total cannabinoid content was less than 0.3% Delta-9-THC. Most states, including Georgia, enacted their own legislation to legalize hemp and regulate the various kinds of hemp products on the market.
The Senate’s Bill Would Likely Ban Most Hemp Products Currently on the Market
The Senate’s bill fundamentally changes the Farm Bill’s definition of “hemp” in a way that would ban a wide range of hemp products that are currently legal. The bill would also exclude certain kinds of hemp products from the definition of “hemp,” such as products containing intoxicating or synthetic cannabinoids.
By excluding these hemp products from the definition of “hemp,” the Senate bill would make them controlled substances under federal law and criminalize the sale and possession as felony offenses.
The bill makes three main changes that, together, would likely ban most hemp products on the market:
1. The bill would change the legal THC limit for “hemp” so that all products must contain less than 0.3% of both Delta-9-THC and THCA combined.
If the Senate bill becomes law, “hemp” would be redefined as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a total tetrahydrocannabinols concentration (including tetrahydrocannabinolic acid [THCA]) of not more than 0.3 percent on a dry weight basis.”
In other words, it would change the legal limit from 0.3% delta-9-THC to 0.3% “Total THC,” which accounts for the amounts of both Delta-9-THC and THCA in a product. This change alone would eliminate almost all THCA products from the market, since the vast majority contain well over 0.3% THCA.
One popular product that would be prohibited under the new law, for example, is “THCA flower” that contains high levels of THCA and under 0.3% delta-9-THC. Notably, THCA turns into delta-9-THC over time or when exposed to heat.
The definition of “hemp” under the 2018 Farm Bill excludes THCA from the THC limit that distinguishes hemp from marijuana. This has led to some confusion in the industry and among law enforcement officials whose testing methods cannot distinguish delta-9-THC from THCA. That confusion has led to raids and arrests of hemp business owners who were selling legal products.
2. The bill would prohibit products containing “hemp-derived cannabinoids” that were “synthesized or manufactured outside the plant.”
In addition to the effective ban on THCA products, the bill would ban another category of hemp products by changing the definition of “hemp” under federal law to exclude “hemp-derived cannabinoid products” containing cannabinoids that were “synthesized or manufactured outside the plant.” The bill would also exclude “intermediate hemp-derived cannabinoid products,” such as oils, distillates, and isolates that are “marketed or sold as a final product or directly to an end consumer for personal or household use.”
As noted above, most hemp-derived cannabinoids must be extracted from cannabis through a series of chemical conversions. In most cases, that starts with extracting CBD from the hemp plant, and then converting the CBD to other cannabinoids like Delta-8-THC, HHC, THCV, and others. This generally requires lab equipment.
By using broad language banning any hemp-derived cannabinoid that was “synthesized or manufactured outside the plant,” the bill seeks to effectively ban all vapes, edibles, oils, flower, and other products containing these hemp-derived cannabinoids.
3. The bill would impose a 0.4 Milligram Limit on the amount of THC and any other cannabinoids that produce “similar effects” in hemp products.
Finally, as a sort of “catch-all” to ban any other hemp products that are potentially intoxicating, the Senate’s bill would prohibit any hemp-derived cannabinoid products that contain more than 0.4 milligrams per container of combined THC, THCA, or any other cannabinoids that produce “similar effects” per container.
The Department of Health and Human Services will determine what other cannabinoids create “similar effects” to THC. Either way, however, such a low milligram limit will effectively ban the vast majority of hemp products containing any form of THC. In fact, the low limit may also prohibit full-spectrum CBD products that are non-intoxicating but contain naturally-occurring amounts of THC.
What this Bill Would Mean for the Hemp Industry
If this bill becomes law, any cannabis product that no longer qualifies as ‘hemp’ would be subject to the federal Controlled Substances Act as illegal marijuana or THC. The net effect of this new, narrower definition of “hemp” would be to effectively ban most hemp products on the market, even potentially non-intoxicating products containing CBD and other non-intoxicating, hemp-derived cannabinoids.
Hemp products like vapes, drinks, edibles, and pre-rolls containing Delta-8-THC, HHC, THCP, and other minor cannabinoids extracted from hemp would lose their classification as legal hemp products and become controlled substances, even in states like Georgia where such products are legal and regulated. THCA products like THCA flower, while already prohibited in Georgia, would become illegal controlled substances nationwide.
These changes would gut the hemp industry as we know it. According to one representative, “the hemp industry supports 320,000 American jobs, generates $28.4 billion in regulated market activity, and produces some $1.5 billion in state tax revenue.” The U.S. Hemp Roundtable said that this proposal would wipe out 95% of the U.S. hemp industry. The bill would affect farmers, manufacturers, retailers, and consumers–every stakeholder in the hemp industry.
The bill provides a 365-day grace period before it goes into effect. Accordingly, if the bill is signed into law, hemp businesses have a year to review these new changes and restrictions and comply with them or challenge them in court.
Can the Proposed Hemp Ban be Challenged in Court?
Even if the pending funding bill and its proposed hemp ban go into effect, the hemp industry can and should fight back by challenging the law in court. While the federal government has discretion to regulate and prohibit certain kinds of hemp products, it must do so clearly and provide affected stakeholders and businesses with due process.
One potential challenge to the new bill, for example, could be brought against any efforts by the government to ban hemp-derived Delta-8-THC as “synthesized or manufactured outside the plant.” Most chemical processes involving the manufacturing of Delta-8-THC are “semi-synthetic,” not synthetic, and Delta-8-THC can be extracted from hemp. Accordingly, certain Delta-8 products may not fall under this ban.
Additionally, the government’s attempt to prohibit products containing THC, THCA, and “any other cannabinoids that have similar effects,” as determined by HHS, can be attacked based on the unconstitutionally vague language that fails to provide lawful hemp businesses with sufficient notice of what cannabinoids are or are not allowed. There is also an argument that this language is unlawful under the “non-delegation” doctrine, under which congress can not delegate major questions to agencies like HHS.
Additional legal challenges may be available based on how federal agencies like the FDA and HHS interpret some of these new definitions. Agencies must comply with certain procedural and legal requirements before implementing new rules, and those rules must be consistent with their authorizing statute.
In short, there may be several challenges that the hemp industry can raise if this new bill is passed. However, the federal government will push back hard, and it is important that any effort to strike down this new bill be led by experienced advocates well-versed in legal and scientific issues involving hemp.
Contact Our Federal Hemp Attorneys
Are you a hemp retailer or producer concerned about the new federal hemp ban? Our firm also stands ready to bring legal challenges to this bill if it passes, and we have a proven track record of obtaining injunctions and other relief against government officials targeting lawful hemp businesses.
