Manufacturers of products containing intoxicating substances that result from chemically altering hemp cannabinoids argue that those products are legal so long as they do not contain D-9 THC that exceeds the 0.3 percent threshold.

There are countless strains of the plant Cannabis sativa L. Depending on the strain, the plant will contain a range of different chemicals called cannabinoids. New cannabinoids are still being discovered. Some of those, such as delta-9 tetrahydrocannabinol (D-9 THC), can cause psychoactive effects, while others such as cannabidiol (CBD) do not cause psychoactive effects. Nonpsychoactive cannabinoids like CBD can be chemically altered to become substances, such as delta-8 tetrahydrocannabinol (D-8 THC), that cause psychoactive effects.

In 2018, Congress passed a Farm Bill that defined “hemp” as:

[T]he 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 delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

Cannabis with D-9 THC that falls below the 0.3 percent threshold is hemp and is federally legal, and cannabis with D-9 THC that exceeds the threshold is marijuana and is a Schedule I controlled substance.

Manufacturers of products containing intoxicating substances that result from chemically altering hemp cannabinoids argue that those products are legal so long as they do not contain D-9 THC that exceeds the 0.3 percent threshold. In their view, the D-9 THC threshold is about the psychoactive effects of that specific chemical, as opposed to being about psychoactive effects from any other hemp “derivative, cannabinoid, isomer, acid, salt, or salt of isomers.” They contend that Congress was only concerned about the intoxicating effects of D-9 THC when it defined hemp, and knowingly legalized any other substance that is or could be traced to a hemp “derivative, cannabinoid, isomer, acid, salt, or salt of isomers,” even if that substance is as or more intoxicating than marijuana.

However, the legislative record for the 2018 Farm Bill suggests that Congress removed hemp from the definition of marijuana under the Controlled Substances Act for industrial uses because of its nonpsychoactive properties, not so that it could be the source of intoxicating substances used in ingestible products. For example, in the lead-up to the 2018 Farm Bill’s enactment, Republican Senator Mitch McConnell of Kentucky criticized “outdated Federal regulations [for] not sufficiently distinguish[ing] this industrial crop [i.e., hemp] from its illicit cousin.” 164 Cong. Rec. S4689-07, S4690 (2018). Senator McConnell made clear that the crux of the distinction, reflected in the bill’s THC threshold, was hemp’s nonintoxicating effects, stating, “Because hemp only has negligible levels of THC, which is the compound which produces the ‘high’ associated with marijuana, the two plants are actually quite different… . This legislation only legalizes hemp with a THC concentration of 0.3 percent or less, far below the THC concentration in marijuana.”[1]

Senators Mark Warner and Tim Kaine, both Democrats from Virginia, echoed these sentiments, issuing a joint press release stating, “Hemp is distinct from marijuana in that it has a miniscule concentration of tetrahydrocannabinol (THC), and thus no narcotic capability.” (Emphasis added). Other legislators issued similar statements, such as Republican Representative Morgan Griffith of Virginia, who said, “Hemp cultivated for industrial use lacks the potency of marijuana,” and Republican Representative Glenn Grothman of Wisconsin, who said, “Non-narcotic industrial hemp makes our economy stronger by providing an additional revenue stream for farmers.” (Emphasis added.)

Nevertheless, the market for products that contain intoxicating substances that are purportedly derived from hemp has exploded in the past two years, with the proliferation of new ingestible products containing substances like D-8 THC. However, some members of Congress have recently proposed language to correct what they believe is a misreading of the intent of legalizing hemp in the 2018 Farm Bill, which was to promote hemp as an agricultural commodity to be grown for industrial uses as opposed to creating intoxicating substances that can be used in ingestible products.

On May 24, 2024, the House Agriculture Committee passed a new Farm Bill that includes an amendment proposed by Republican Representative Mary Miller of Illinois that would redefine hemp to change the 0.3 percent D-9 THC threshold to a “total THC” threshold that includes all tetrahydrocannabinols naturally occurring in hemp, and to exclude “hemp-derived cannabinoid products,” defined as intermediate or finished products derived from hemp that contain cannabinoids in any form and are intended for human or animal consumption that contain cannabinoids that are not naturally produced by the Cannabis sativa L plant; natural cannabinoids that are chemically synthesized outside the plant; and intoxicating tetrahydrocannabinols, including tetrahydrocannabinol acid (THCa). Industrial hemp is excluded from the definition of “hemp-derived cannabinoid product.” On June 11, 2024, the House Agriculture, Rural Development, Food and Drug Administration subcommittee passed an appropriations bill that included language similar to that proposed by Representative Miller.

The definition of hemp in the 2018 Farm Bill stands for now, and manufacturers of substances containing intoxicating hemp cannabinoids oppose changing that definition as proposed by Representative Miller. However, many operators in states that have legalized marijuana for adult and/or medical use support restricting or regulating intoxicating hemp cannabinoids, so it remains to be seen where Congress will land on this issue.

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