Researchers from the U.S. Congress have released a study that outlines current policy and offers options to lawmakers for resolving outstanding questions related to an proposed THC prohibition.
According to the Congressional Research Service report, federal legalization of hemp containing up 0.3 percent THC in dry weight occurred after the passage of the 2018 Farm Bill, during the first term for President Donald Trump. This policy has been scrutinized on Capitol Hill.
According to the report, “Following enactment by the 2018 farm act, cannabis producers began manufacturing certain cannabis-based products with less than 0.3% Delta-9 THC and a THC content that exceeded 0.3%.” Some of these products could be intoxicating for the consumer. Due to the fact that THC, a Schedule I controlled drug is listed separately from hemp products, it is unclear which are legal.
CRS described also the often conflicting legal and administrative perspectives, as the Drug Enforcement Administration and some federal courts “reach different conclusions about whether certain cannabis-based products are hemp.”
There was also a mention of the fact that several states had passed laws or talked about passing legislation to prohibit or restrict hemp products containing certain amounts of THC.
The CRS reports that “Various hemp participants have filed lawsuits against several state attempts to ban certain cannabis products, with the main argument being (1) state laws are in violation of the Dormant Commerce Clause (2) and the 2018 Farm Bill preempts state laws.”
It said that “in light of uncertainty and disagreement regarding the 2018 Farm Bill’s hemp-definition and the growth of certain THC products,” Congress could consider revising its definition to exclude cannabinoid product from marijuana definition under the CSA. Congress had previously thought about amending the definition.
A House Agriculture Appropriations bill in this session includes a provision to redefine hemp, including the cannabis plant as well as all derivatives of it with a THC total concentration not exceeding 0.3 percent. A “similar” change in policy was proposed by the Senate in the version of the Farm Bill introduced during the 118th Congress.
A House amendment to the Farm Bill also recommended this change. A similar amendment could be used to determine what constitutes marijuana and hemp. This change will bring back certain THC-containing products that were previously considered hemp, or in an unregulated area.
Congress could also look at other changes to hemp’s 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.”
CRS stated that the definition of CSA would determine which products are regulated. Congress may also let agency and court interpretations play out, without any congressional involvement.
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.”
The executive or legislative branch can change marijuana’s status. Congress has the power to change the classification of a controlled drug through legislation. The CSA gives the DEA the authority to schedule drugs through the “notice-and-comment” rulemaking process.
CRS reported that DEA was actively evaluating a proposal for marijuana to be moved from Schedule I of the CSA to Schedule III. DEA is also actively reviewing a proposal to move marijuana from Schedule I to Schedule III of the CSA.
CRS released an independent report in June that stated the legislation will “effectively prohibit” hemp-derived products. CRS originally stated that a similar ban would also prevent CBD sales, but it was later updated to remove that statement.
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Rand Paul, a Republican Senator from Kentucky (R), recently announced that he would meet with House members to “compromise” over a way to regulate hemp. This is in response to his objection to the proposal by Congress to prohibit products with “quantifiable amounts” of THC.
Mitch McConnell’s (R-KY), despite denying that the legislation his office sponsored “completely destroyed” the market like Paul and other industry participants have claimed, agreed in the end to take the language out of the Agriculture Bill after Paul filed a formal 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.
In June, the senator presented the Hemp Economic Mobilization Plan Act (HEMP). It mirrors versions he’s sponsored over the last several sessions.
Hemp industry participants rallied to oppose that proposal. A previous version of it was also in the base Bill from last year’s subcommittee. 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.
Rep. James Comer, R-KY, also asked about FDA’s inaction on regulations. He joked that it would take “a gazillion of bureaucrats who work at home” to control cannabinoids like 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.
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