A Senate-Approved Bill Would Ban the Hemp-Derived THC Products That Congress Legalized in 2018
The appropriations bill, which the House is considering, would wipe out an industry that offers alternatives to cannabis consumers in states that still prohibit recreational marijuana use.
Forty states now allow medical use of marijuana, while 24, accounting for most of the U.S. population, also allow recreational use. Yet the federal ban on marijuana, first enacted in 1937, remains in place, which means state-licensed cannabis suppliers still face legal risks and financial burdens stemming from a policy that a large majority of Americans reject. But instead of addressing that increasingly untenable situation by repealing federal marijuana prohibition, the U.S. Senate is bent on expanding the ban to cover psychoactive hemp products.
An appropriations bill that was part of the Senate deal to end the federal shutdown aims to close a loophole opened by the 2018 farm bill, which legalized hemp. That law defined hemp to include any part of the cannabis plant containing less than 0.3 percent delta-9 tetrahydrocannabinol (THC), the main psychoactive ingredient in marijuana. The definition also includes "all [hemp] derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers," as long as their delta-9 THC content is less than 0.3 percent.
The farm bill opened the door to a wide range of hemp-derived products, including edibles, beverages, flower, and vape cartridges containing delta-8 THC, an isomer that has effects similar to those of delta-9 THC, or tetrahydrocannabinolic acid (THCA), which converts to delta-9 THC when heated. That explains all those seemingly illegal THC products you may have seen online or in vape shops, pharmacies, or liquor stores, which offer alternatives for cannabis consumers who live in states that still prohibit recreational use of marijuana.
Pot prohibitionists unsurprisingly view that situation as intolerable. The Senate appropriations bill, which would fund agricultural programs, rural development, and the Food and Drug Administration through fiscal year 2026, addresses their concerns by redefining hemp to exclude psychoactive products derived from hemp. According to a summary from the Senate Appropriations Committee, the bill will prevent "intoxicating hemp-based or hemp-derived products, including Delta-8, from being sold online, in gas stations, and corner stores, while preserving non-intoxicating CBD and industrial hemp products."
The narrower hemp definition, which amounts to a broader definition of marijuana, excludes "any intermediate hemp-derived cannabinoid products" containing "cannabinoids that are not capable of being naturally produced" by the cannabis plant or that "were synthesized or manufactured outside the plant." It also prohibits intermediate products containing more than a 0.3 percent "combined total" of "tetrahydrocannabinols (including tetrahydrocannabinolic acid)" or "any other cannabinoids that have similar effects (or are marketed to have similar effects) on humans or animals." And it bans final hemp products that contain either synthesized cannabinoids or "0.4 milligrams combined total per container" of "tetrahydrocannabinols" (including THCA) or "any other cannabinoids" with "similar effects."
Given those limits, Cannabis Business Times notes, "companies that manufacture and sell intoxicating hemp products in today's market would have to overhaul or abandon their business plans." The U.S. Hemp Roundtable (USHR), a trade group that represents those companies, is understandably alarmed, "arguing that [the bill] would recriminalize hemp products and threaten to eliminate a $28 billion industry that provides 300,000 American jobs."
The USHR estimates that "95% of our industry will be banned as a result of the newly proposed .4mg THC caps per container," eliminating $1.5 billion in annual state tax revenue. "Our industry is being used as a pawn as leaders work to reopen the government," USHR General Counsel Jonathan Miller says. "Recriminalizing hemp will force American farms and businesses to close and disrupt the well-being of countless Americans who depend on hemp."
Sen. Mitch McConnell (R–Ky.), who championed hemp legalization in 2018, is not impressed by such complaints. "My 2018 hemp bill sought to create an agricultural hemp industry," he said during a hearing last July, "not open the door to the sale of unregulated, intoxicating, lab-made, hemp-derived substances with no safety framework." Politico reported that McConnell, who spearheaded the proposed ban on those products, "views the provision as key to solidifying his agriculture policy legacy in Congress before he retires next year."
The other senator from Kentucky sees things differently. In July, Sen. Rand Paul (R–Ky.) said the ban favored by McConnell would "devastate" Kentucky hemp farmers. Paul threatened to hold up an earlier version of the appropriations bill that included the redefinition of hemp, which was ultimately removed.
On Monday, Paul reiterated his opposition to the hemp language. "There is extraneous language in this package that has nothing to do with reopening the government and would harm Kentucky's hemp farmers and small businesses," he said on X. "Standing up for Kentucky jobs is part of my job." He wanted to "express my displeasure with them screwing up an entire industry," he told reporters, adding that his constituents "will feel" that "there's at least been somebody fighting" for them.
This time around, Paul's attempt to amend the bill was defeated by a vote of 76–24. Sen. Ted Cruz (R–Texas) was the only other Republican who sided with Paul.
"We're going to keep at it until we get this fixed," Sen. Ron Wyden (D–Ore.), who also supported Paul's amendment, told Politico on Monday. The House of Representatives is voting today on legislation to end the shutdown. Assuming it approves the agriculture bill, any differences from the Senate version would be addressed by a conference committee.
Republicans have a slim, five-seat majority in the House, and "at least 13" of them oppose the hemp language, Cannabis Business Times reports. "If the language contained in the FY26 Agriculture-FDA Appropriations Bill were to become law," Rep. James Comer (R–Ky.) warned in a September 26 letter to House Speaker Mike Johnson (R–La.), "it would deal a fatal blow to American farmers supplying the regulated hemp industry and small businesses, and jeopardize tens of billions of dollars in economic activity around the country." Twenty-six representatives, including 12 Republicans, joined Comer in signing that letter.
The National Cannabis Industry Association, despite its members' potential interest in squelching competition from hemp-derived THC products, also opposes the ban. "Hemp-derived THC products are already widely available across the country," the trade group's CEO, Aaron Smith, noted in June. A ban "won't change that fact," he added, "but it will ensure these products are made and sold without oversight, delivering a big win to the drug cartels at the expense of public health and safety." Smith said Congress should instead "empower federal agencies to regulate these products responsibly, not double down on prohibitionist policies that have already proven to be failures both in practice and in the court of public opinion."
