In December 2018 the Senate easily passed the 2018 Farm Bill, the Agriculture Improvement Act of 2018, 87 to 13. The New York Times reported Mitch McConnell, the Senate Majority Leader at the time, insisted the 2018 Farm Bill legalize industrial hemp as a crop in order to give farmers hurting from the loss of tobacco a boost on a new potential crop. “The measure is expected to open up the usage of hemp for construction products and plastic composites, and should help vendors of cannabidiol [CBD], a cannabis compound that does not cause a high.” Instead, it accidentally legalized THC products across the entire United States.
In “Congress Accidentally Legalized Weed Six Years Ago,” The Atlantic noted while recreational marijuana use is legal in only 24 states and Washington D.C., as a result of the 2018 Farm Bill, people anywhere in the U.S. now have access to hemp-derived THC products that can get you high without breaking federal law. Lawmakers who backed hemp legalization expected the plant would be used for textiles and nonintoxicating supplements, such as CBD oil. “They didn’t realize that, with some chemistry and creativity, hemp can get you just as high as the dankest marijuana plant.”
The Origin of Delta-8
In March 2002, the famed Israeli chemist Raphael Mechoulam, who first synthesized and identified THC in the 1960s, had filed a patent application with two colleagues for converting CBD oil into delta-9 THC—and a lesser-known but similarly intoxicating cannabinoid called delta-8. That breakthrough was purely academic at the time, given that deriving THC from hemp was just as illegal as growing marijuana, only more complicated. However, after the 2018 Farm Bill and the late-2019 collapse of the CBD market, it took on enormous practical implications.
According to the plain text of the Farm Bill, it appeared to be legal to convert CBD into delta-8 THC so long as the process started with a plant that contained less than 0.3 percent delta-9 THC—an interpretation that was eventually endorsed in a ruling by the Ninth Circuit Court of Appeals. It’s unclear who first noticed that loophole, but delta-8 began appearing in news headlines in 2020. Once word got out, the industry response was enthusiastic.
And this resulted in a hemp-derived industry estimated now to be in the billions of dollars. Hemp-derived intoxicants are available at vape shops, gas stations, and convenience stores across the country. The availability of hemp intoxicants has even become a source of anxiety for the marijuana industry. The hemp-derived industry can use banks, can accept credit cards, advertise on Instagram and ship to all 50 states, because they are federally legal. And they don’t have to pay the excise taxes in states where recreational marijuana was legalized.
Marijuana lobbyists have asked for parity in hemp and marijuana regulations, beginning with a cap on the strength of hemp-derived intoxicants. “The Cannabis Regulators Association has also asked Congress to establish that states can choose to restrict hemp within their borders.” Some experts also warn the chemical process of creating hemp-based cannabinoids could be dangerous. The Associated Press noted in “What to know about delta-8 and other common vape shop drugs” that because of a lack of oversight inro manufacturing processes and uniformity of labeling requirements, “it’s hard to know what exactly is in a particular product,” including the potency of the drug in many of these products.
The chemical process to make delta-8 uses strong acids and more … and if some of those other trace chemicals are left behind, they can pose added health risks to those already posed by delta-8 itself.
For example, the U.S. Food and Drug Administration began investigating illnesses earlier this year caused by recalled Diamond Shruumz products, which in addition to containing muscimol, a legal psychoactive compound from the Amanita muscaria mushroom, were found to contain other unlisted ingredients, including psilocin, a controlled substance.
The Atlantic described how we ended up with this dilemma. Congress banned both hemp and marijuana in 1937 by passing the Marihuana Tax Act, imposing stiff criminal penalties for noncompliance. When the Supreme Court overturned the 1937 law in 1969, Congress responded with the Controlled Substances Act of 1970, which outlawed hemp, marijuana and a host of other drugs. A movement to legalize hemp emerged in the 1980s, charging that the federal government had targeted hemp “because its textile applications threatened politically connected magnates.” This eventually resulted in the 2018 Farm Bill. “Donald Trump’s signature on that bill was like the shot from a starter gun.”
Gas-Station Marijuana: Ban or Regulate?
The House Appropriations Committee recently declared that banning hemp-derived synthetic chemicals “supports the mandate of the American people.” It hopes to do this this by closing the loophole that brought about the proliferation of unregulated intoxicating hemp products, including Delta-8 and hemp flower, which are being sold online, and in gas stations and vape shops around the country. Newsweek said in the beginning of June, the House Appropriations Subcommittee on Agriculture, Rural Development, Food and Drug Administration and related agencies endorsed a bill that would make most hemp-derived cannabinoid products illegal at the federal level. “The bill would redefine hemp to prohibit any product containing “quantifiable” levels of THC or tetrahydrocannabinolic acid, a precursor to THC.”
The Drug Report reported in “Texas Blinked Big Time on SB 3,” that at the 11th hour, that Texas Governor Greg Abbott vetoed a bill that would have banned these hemp-derived products and referred it back to the legislature. In doing so, “Abbott ignored cries of alarm from parents, law enforcement, and public health groups and chose instead to listen to an industry-backed lobbying campaign.” In 2023, Arkansas’ Governor Sarah Huckabee Sanders resisted pressure from some of the country’s largest hemp companies and signed a ban on these products.
The Atlantic reported as of 2023, while 17 states had nominally banned hemp products, no one can stop out-of-state deliveries. The marijuana industry is calling for the regulation, not prohibition of hemp-derived products. This is not a red-state or blue-state issue. Connecticut (a blue state) is cracking down on hemp-derived drugs, as is Nebraska (a red state). Twenty-one State Attorney Generals, both Republican and Democrat, have called for an end to the hemp-loophole on public health grounds. They strongly urged the federal committees to address the glaring vagueness of the 2018 Farm Bill that led to the proliferation of intoxicating hemp products across the nation and challenges to state and local authorities to respond to the resulting health and safety crisis:
The current law defining hemp has resulted in exploitation. Applied to foods, the 0.3% THC limit which distinguishes industrial hemp from cannabis, is inadequate to distinguish the potential for intoxication. The result that has been seen is excessively potent products that are manufactured under fewer controls than in states that have legalized cannabis. Because of the ambiguity created by the 2018 Farm Bill, a massive gray market worth an estimated $28 billion has exploded, forcing cannabis-equivalent products into our economies regardless of states’ intentions to legalize cannabis use, and dangerously undermining regulations and consumer protections in states where adult-use legal cannabis programs are already in place. Many states now face poisonings from poorly manufactured products, products with misleading labels, and consumption by individuals who are under the age of twenty-one. As hemp-based THC-infused products increase in popularity, particularly edibles, illicit suppliers have begun co-opting legitimate brand names and packaging to sell candy, snacks, and cereal that are intoxicating and confusing to consumers. These copycat hemp products place children at exceptional risk.
This year’s anticipated reauthorization of the Farm Bill and the need for this reauthorization to make much-needed improvements to the statute established in 2018 comes at a critical time, as our states are being tested in our efforts to regulate these potentially dangerous products. These intoxicating hemp products, by virtue of their potential hazard to consumers, must be regulated by each state. The definition of hemp should be amended to clarify that there is no federal hemp intoxicants loophole, and the 2023 reauthorization should reaffirm that members of Congress do not intend to limit states in restrictions or regulations related to cannabinoids or any other derivatives of hemp which are deemed intoxicating.
The American Relief Act, 2025, extended the 2018 Farm Bill through September 30, 2025. Let’s hope the proposed bill will “provide for the reform and continuation of agricultural and other programs of the Department of Agriculture through fiscal year 2029” and will permanently close the loophole created in 2018. If it means the end of the $28 billion gray market of hemp-derived THC products, so be it.
