The Existing Legal Position of Hemp
The 2018 Farm Bill, officially named the Agriculture Improvement Act, was signed into law in late December 2018. This landmark legislation removed "hemp," which is defined as cannabis (Cannabis sativa L.) and its derivatives with minimal amounts of delta-9-tetrahydrocannabinol (delta-9 THC) - no more than 0.3% on a dry weight basis - from being classified as marijuana under the Controlled Substances Act (CSA). This has opened up a whole new industry for farmers and entrepreneurs, as hemp can be used to make a wide variety of products and has numerous potential health benefits. The passing of the 2018 Farm Bill has been seen as a positive step forward for the hemp industry, and has created exciting new opportunities for growth and development.
Before the 2018 Farm Bill, the CSA treated marijuana and hemp as indistinguishable, resulting in all forms of cannabis, with some exceptions, being classified as a Schedule I substance and thus regulated by the Drug Enforcement Administration (DEA). However, by excluding "hemp" from the definition of "marijuana" as a Schedule I substance, Congress effectively approved the production and distribution of hemp, marking a positive step towards its legalization.
This definitional change to hemp arguably created what some consider a "loophole" for the sale of products containing potentially intoxicating cannabinoids other than delta-9 THC, such as delta-8 THC and tetrahydrocannabinolic acid (THCA).
Since this definitional change was enacted in 2018, the market for hemp-derived (or non-delta-9 THC) cannabinoids within states has soared, including for intoxicating hemp products. Forbes reports that sales of products containing delta-8 THC generated over $2 billion in revenue in 2021 and 2022. A federally funded study published in December 2023 found that, among people who used cannabis in the past year, those living in states that still do not have legal marijuana markets were more than twice as likely to have used delta-8 THC. As the report summarized, "higher Δ8-THC use in states without medical or adult-use cannabis laws suggests that cannabis prohibition may unintentionally promote Δ8-THC use."
In 2023, the federal government was expected to release the new 2023 Farm Bill, which many state lawmakers anticipated would address – and potentially resolve – the "loophole" with respect to psychoactive hemp products created by the 2018 Farm Bill. However, in November 2023, President Biden extended the 2018 Farm Bill through September 30, 2024.
What's Next for the Hemp Industry?
State legislators, especially in those where marijuana is not yet legal (but not exclusively), are now redefining and regulating hemp-derived cannabinoids that may cause intoxication, aside from delta-9 THC within their state boundaries. Indeed, Nebraska, Florida, Tennessee, South Dakota, Arkansas, Alaska, and Virginia, as well as others, have all proposed or, in some cases, already passed laws restricting products containing potentially intoxicating cannabinoids derived from hemp.
As explained further below, several states have implemented "total THC" limits on hemp products to regulate potentially intoxicating cannabinoids. This updated definition now encompasses a broader range of potentially intoxicating cannabinoids in the calculation of THC levels in the product, beyond just the delta-9 THC content. For example, a hemp product containing 0.2% delta-9 THC and 20% delta-8 THC would, under a "total THC" definition, contain 20.2% total THC. If a state law imposes a limit of 0.3% total THC, the product is illegal under state law.
In addition to total THC limits, some states are also placing a total ban on any synthetic or chemically manipulated cannabinoid(s), effectively prohibiting the production and sale of any products containing delta-8 THC, delta-10 THC, THCA, and other potentially intoxicating cannabinoids.
