Politics
Congressional Researchers Detail ‘Divergent’ Opinions On Hemp As Lawmakers Debate THC Ban
Amid a contentious debate over federal laws on intoxicating hemp products, congressional researchers have published a report outlining current policies and options for lawmakers to resolve outstanding issues related to a proposed THC ban.
The Congressional Research Service (CRS) report explains how, following the enactment of the 2018 Farm Bill during President Donald Trump’s first term, hemp containing up to 0.3 percent THC by dry weight was federally legalized. But now that policy is under scrutiny on Capitol Hill.
“Following the enactment of the 2018 farm bill, the cannabis industry began producing certain cannabis products that contain less than 0.3% delta-9 THC but a total THC concentration that exceeds 0.3%,” the report says. “Some of these products may be intoxicating to the user. Given that THC is separately listed as a Schedule I controlled substance, there is some uncertainty regarding which of these products are legally considered hemp.”
CRS also described the sometimes conflicting administrative and legal perspectives on the issue, with the Drug Enforcement Administration (DEA) and certain federal courts reaching “divergent conclusions regarding whether certain cannabis products are hemp.”
It also noted that several states have passed or discussed laws to restrict or prohibit hemp products containing certain levels of THC, and how stakeholders have challenged those bans in court.
“Various participants in the hemp industry have challenged several of these state efforts to prohibit certain cannabis products by filing lawsuits, primarily arguing that (1) the state laws violate the Dormant Commerce Clause and (2) the 2018 farm bill preempts the state laws,” the CRS report says.
“In light of the uncertainty and disagreement over the 2018 farm bill’s hemp definition and the rise of certain THC products, Congress may consider whether to revise its definition as to which cannabinoid products are excluded from the definition of marijuana under the CSA,” it said. “Congress has previously considered amending this definition.”
It noted that a House agriculture appropriations bill this session “includes a provision that would redefine hemp to include the cannabis plant and all derivatives with a total THC concentration of not more than 0.3 percent.” And a “similar” policy change “was previously proposed in a version of the farm bill introduced in the Senate during the 118th Congress.”
“An amendment to a House version of the farm bill also suggested this change. Such an amendment would consider all THC for the purposes of legally determining what is hemp and what is marijuana,” the report says, referring to broad agriculture legislation that advanced, but did not pass, last Congress. “This change would bring certain THC products back under the CSA and DEA regulation that are currently considered to be hemp or are in an uncertain area of regulation.”
“Congress could also consider other amendments to the hemp definition. For example, it could adopt DEA’s interpretation that ‘synthetically derived’ THC remains a Schedule I controlled substance,” it continues. “Using the term ‘synthetically derived’ may raise new questions as to what Congress means by synthetic, unless it were clearly defined.”
“How it would be defined would affect which products would be regulated by the CSA,” CRS said. “Congress could also allow agency and judicial interpretations to play out without congressional intervention.”
The report also mentions that congressional lawmakers could look at more broadly revising the status of marijuana under the CSA, “which would affect how cannabinoid products that are not deemed to be hemp would be regulated.”
“Either Congress or the executive branch has the authority to change the status of marijuana. Congress can change the status of a controlled substance through legislation, while the CSA empowers DEA to make scheduling decisions through the notice-and-comment rulemaking process.”
To that point, CRS noted, DEA is actively reviewing a proposal to move marijuana from Schedule I to Schedule III of the CSA. And at the same time, there’s been legislation introduced in the prior Congress that would deschedule cannabis altogether.
CRS separately released a report in June stating that the legislation would “effectively” prohibit hemp-derived cannabinoid products. Initially it said that such a ban would prevent the sale of CBD as well, but the CRS report was updated to exclude that language.
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Meanwhile, Sen. Rand Paul (R-KY) recently said he has plans to meet with House lawmakers to “reach a compromise” on an approach to regulate hemp in light of his opposition to a proposal in Congress to ban products with any “quantifiable” amount of THC.
While Sen. Mitch McConnell (R-KY) has contested the idea that the legislation he sponsored would “completely destroy” the market, as Paul and industry stakeholders have insisted, he ultimately agreed to pull the language from the agriculture bill following Paul’s procedural protest. The Senate passed the underlying legislation earlier this month.
Separately, Paul recently filed a standalone bill that would go in the opposite direction of the hemp ban, proposing to triple the concentration of THC that the crop could legally contain, while addressing multiple other concerns the industry has expressed about federal regulations.
The senator introduced the legislation, titled the Hemp Economic Mobilization Plan (HEMP) Act, in June. It mirrors versions he’s sponsored over the last several sessions.
Hemp industry stakeholders rallied against that proposal, an earlier version of which was also included in the base bill from the subcommittee last year. It’s virtually identical to a provision of the 2024 Farm Bill that was attached by a separate committee last May via an amendment from Rep. Mary Miller (R-IL), which was also not enacted into law.
A leading alcohol industry association, meanwhile, has called on Congress to dial back language in the House spending bill that would ban most consumable hemp products, instead proposing to maintain the legalization of naturally derived cannabinoids from the crop and only prohibit synthetic items.
Wine & Spirits Wholesalers of America (WSWA) President and CEO Francis Creighton said in a press release that “proponents and opponents alike have agreed that this language amounts to a ban.”
Separately, key GOP congressional lawmakers—including one member who supports marijuana legalization—don’t seem especially concerned about provisions in the bill despite concern from stakeholders that it would put much of the hemp industry in jeopardy by banning most consumable products derived from the plant.
Jonathan Miller, general counsel at the U.S. Hemp Roundtable, told congressional lawmakers in April that the market is “begging” for federal regulations around cannabis products.
At the hearing, Rep. James Comer (R-KY) also inquired about FDA inaction around regulations, sarcastically asking if it’d require “a gazillion bureaucrats that work from home” to regulate cannabinoids such as CBD.
A report from Bloomberg Intelligence (BI) last year called cannabis a “significant threat” to the alcohol industry, citing survey data that suggests more people are using cannabis as a substitute for alcoholic beverages such a beer and wine.
Last November, meanwhile, a beer industry trade group put out a statement of guiding principles to address what it called “the proliferation of largely unregulated intoxicating hemp and cannabis products,” warning of risks to consumers and communities resulting from THC consumption.
