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The federal shutdown may be over, but its fallout certainly isn’t. On top of the ongoing disruptions to food stamps and the safety net, the continuing resolution that reopened the government has come under much scrutiny, thanks in no small part to an outrageous legislative provision that Congress will be asked to repeal soon: a little last-minute poison pill known broadly as the intoxicating-hemp ban. (Indeed, Republican Rep. Nancy Mace has already drawn up a bill to overturn said ban altogether.)
At Mitch McConnell’s urging, the government resolution included a measure forbidding the sale of any hemp-derived commodities that contain more than 0.4 grams of THC, the psychoactive chemical compound that gets you high. This was intended expressly as a means of closing the so-called hemp loophole, created by the 2018 farm bill that federally legalized the growth of low-THC hemp plants (i.e., containing no more than 0.3 percent delta-9 THC). Passed with bipartisan approval under the first Trump administration, the law was intended to benefit the agriculture industry by allowing commercial farmers to cultivate a flexible herb that could be used in ropes, clothes, and even home construction material. But the farm bill did not place any THC limits on products developed from hemp, leading to a boom in candies, combustible flowers, drinks, and other consumable products with ample dosages of cannabinoids like delta-8 and CBD.
In states that had not legalized weed as a recreational or medical drug, the growth of hemp farming and refining allowed certain retailers to get away with stocking weed products that did not meet the scientific definition of marijuana as a controlled substance at the federal level, thanks to their THC limits. “Hemp and cannabis/marijuana are the same plant. THC extract from a low-THC plant and a high-THC plant is the exact same substance,” Lauren Yoshiko, a cannabis journalist who writes the Sticky Bits newsletter, wrote to me in an email.
Federal hemp legalization fueled a multibillion-dollar national industry, as well as a moral panic over the ready availability of its consumable substances. “There have been a lot of grabby headlines about kids getting into high-THC product from gas stations,” Yoshiko added. “But multiple states have demonstrated how regulating a hemp program can work. We only ended up with some 100 mg THC drinks at bodegas because people manipulated the math.”
The hemp-derived goods that have beneficial effects for physical pain, anxiety and insomnia, skin care, and general nutrition don’t always get the same shine as the high-profile instances of kids accidentally eating brightly packaged gummies. Even President Donald Trump, who signed this bill, has acknowledged CBD’s benefits to senior citizens. Veterinarians have also used CBD to help dogs, cats, and other pets handle painful conditions, leading them to warn that this hemp ban will hamper treatment efforts.
Prior to 2018, hemp research and production had been important to agriculture-heavy states like Texas and Kentucky, thanks to other federal adjustments that began to relax “war on drugs”–era prohibitions on the cannabis plant. But there’s another industry that’s even more essential to the Bluegrass State in particular: booze. Kentucky’s iconic breweries and distilleries have been suffering as of late, thanks to lingering fallout from the pandemic’s economic disruption, a decline in casual drinking among American youths, and the recent Canadian boycott. Those beer and bourbon makers still hold major sway with McConnell and have substantial backup from national-scale alcohol and beverage lobbyists, who’ve made the recent popularity of THC-infused drinks—mostly delta-8 and delta-9—a scapegoat for their sector’s troubles.
“A lot of firms that entered the THC-drinks space early on were themselves part of the beverage alcohol industry, smaller brewers especially,” said Dave Infante, a journalist and industry expert who writes the beer-focused newsletter Fingers. “There wasn’t a lot of animus toward THC drinks from the big booze space because they weren’t paying attention to it. Once hemp-derived delta-9 THC came along and brewers started making a market out of that, then there was real uptake.”
Alcohol trade groups, the Consumer Brands Association, multistate marijuana retailers, and state attorneys general have been asking Congress to crack down on hemp-derived substances enabled by the loophole, professing concerns over consumer safety and unfair competition. The AGs’ push was led by Arkansas’ Tim Griffin, whose state had banned the sale of those products back in 2023. Other states have since followed suit with their own particular restrictions, albeit with varying levels of pushback: As I wrote back in May, Texas’ attempt to ban hemp goods with any amount of THC earned massive backlash from liberals and conservatives alike, leading its governor to veto the relevant legislation.
Other areas have taken a more unique approach to regulation. Minnesota straight-up legalized hemp-derived consumables in 2022, while imposing a limit of 5 mg of THC per unit. The Gopher State’s rich brewery culture welcomed the ability to peddle THC drinks, citing it as a key business driver for small craft brewers—but confusingly, its attorney general also signed on to the AGs’ anti-loophole letter to Congress. That contradiction can be chalked up to the fact that some lobbies are just stronger and more established than others.
“The hemp industry does not have the deep pockets of the alcohol industry,” said Infante. “But I have yet to encounter persuasive evidence that drinkers are passing up alcohol because they would prefer to drink hemp-derived THC seltzers or lemonade. Even the Minnesota Brewers Guild doesn’t have good data on that, and that’s the most robust market in the country.”
Nevertheless, he added, it is true that alcohol faces a more exacting sales process. “The lobby will say they’re amenable to the hemp-derived THC drinks business, if it adheres to the laws that that they have to adhere to: pays the same in excise taxes, goes through the three-tier system to get to the consumer, only gets sold at retailers that have specific licenses,” Infante told me. “Some of this is posturing, but it is true that THC beverages emerged so quickly and became quite lucrative.” As for packaged snacks from companies represented by the Consumer Brands Association, it stands to reason why Skittles doesn’t want to see its logo appropriated for hemp-derived likenesses that the Wrigley Company did not create.
Yoshiko also notes that it’s difficult as of yet to quantify the impact of state-level restrictions on a fledgling industry. “I don’t know if hemp crackdowns have negatively impacted farmers or retailers as much as oversaturation of products and race-to-the-bottom pricing,” she wrote to Slate, alluding to the glut in hemp production that followed the 2018 farm bill. “And I don’t think many of those local bans are very strictly enforced.”
The concerns over a broadly ill-regulated market are very legitimate, as is the desire for more federal guidelines and better enforcement at the micro level. But the all-out prohibitive approach endorsed by Congress makes little sense and only adds more confusion, not less. As Yoshiko pointed out in Sticky Bits, the government resolution also “bars funding to reclassify marijuana under the Controlled Substances Act,” putting Trump’s own professed reclassification desires out of reach. Further, as Yoshiko wrote to me, “in states where cannabis is not legalized, this will result in a boom for the underground market,” and thus, sales of even sketchier, more potentially harmful products.
Some lawmakers appeared to understand this, at first. Kentucky’s junior senator, Rand Paul, has pitched a fit over the hemp ban and played a significant role, during the summer’s slogging farm-bill renegotiations, in pushing it out of any future version. Paul once again led the charge to drop the restrictions from the budget resolution, with vocal backing from Republican Kentuckians in the House of Representatives. Nevertheless, as Infante explained, they were up against momentum to reopen the government.
“The longer the government stays closed, the more Congress gets pressured from its donors and from its constituents to some extent. That pressure was beneficial to trying to place a bunch of wish list items,” he said. “A lot of lawmakers were loosely opposed to it, but not really willing to go to the mat one way or the other. And they did it over the weekend when fewer people were paying attention.” (Kentucky’s Democratic governor, Andy Beshear, was then left to protest that hemp regulation should remain a state effort.)
What happens now? The intoxicating-hemp ban doesn’t take effect until a year from its passage, and industry insiders are suggesting ways business owners can adjust. Grassroots backlash akin to the protests that defeated Texas’ proposed hemp ban is already formulating: Hemp retailers and farmers across the country, in red and blue states alike, are publicizing the impending damage to their livelihoods, while Paul is supporting Mace with a planned Senate counterpart bill to overturn the ban. Even MAGA influencers are unhappy with the federal measure, as are celebrities like Seth Rogen and Joe Rogan (the latter of whom also opposed Texas’ crackdowns). Ex–NFL lineman and hemp advocate Kyle Turley, who’s previously met with Trump to promote the plant, slammed the government move as a “betrayal.”
Can a cross-partisan nationwide coalition push back against Congress as effectively as the people of Texas could? We have the coming year to find out.
