Opening the Government, Closing the “Hemp Loophole”

1.     Introduction

Marijuana and hemp are strains or sub-species of the plant species Cannabis sativa L that contain hundreds of naturally occurring cannabinoids, including cannabidiol (“CBD”), which is not intoxicating, delta-9 tetrahydrocannabinol (“THC”), which can be intoxicating, and a precursor delta-9 THC called THCa, which becomes intoxicating when it is decarboxylated, such as by smoking or vaping. Under the Controlled Substances Act of 1970 (“CSA”), both strains were federally unlawful. However, hemp was legalized federally for industrial purposes in the Agriculture Improvement Act of 2018 (the “2018 Farm Bill”), which distinguished hemp from federally unlawful marijuana by their concentration of delta-9 THC. Under the 2018 Farm Bill, Cannabis sativa L plants with a delta-9 THC concentration of .3% or less were deemed lawful hemp because they were presumed to be non-intoxicating, and could therefore be safely used for industrial purposes, whereas Cannabis sativa L plants with a greater delta-9 THC concentration were considered federally outlawed marijuana because of their psychoactive effects. Around 2022, ingestible products like gummies, candies, tinctures, and inhalable vape products containing intoxicating substances began appearing in local convenience stores, smoke shops, and bodegas throughout the country. These “hemp-synthesized intoxicants” (“HSIs”) are produced by chemically converting non-intoxicating CBD.

Even though HSIs can be just as intoxicating as federally unlawful marijuana, HSI product manufacturers claimed they were federally legal because of a loophole in the 2018 Farm Bill definition of hemp, which legalized hemp and all hemp “derivatives, extracts, cannabinoids, and isomers.” Due to a lack of regulatory oversight, HSIs are generally not produced with safety standards, such as lab testing and labeling requirements. Public safety concerns resulted in HSI bans in 23 states, as advocates on both sides debated whether the 2018 Farm Bill legalized HSIs or bad actors were exploiting an unintended loophole. Nevertheless, the market for products containing HSIs grew to billions.

As Congress considered legislation to reopen the federal government in November 2025, groups from the hemp, cannabis, alcohol, and consumer goods industries lobbied fiercely about whether and how to close the loophole, making it one of the key issues considered by legislators. Senator Mitch McConnell, who sponsored the 2018 Farm Bill, advocated for closing the loophole, stating “my 2018 hemp bill sought to create an agricultural hemp industry, not open the door to the sale of unregulated, intoxicating, lab-made, hemp-derived substances with no safety framework.” In contrast, his Kentucky colleague, Senator Rand Paul, opposed closing the loophole and voted against the appropriations bill for that reason. Ultimately, the appropriations bill included language re-defining hemp to exclude hemp HSIs and to limit the total amount of natural THC that can be in hemp or a hemp product.[1] Critics of the new law, such as Senator Paul, claim it will kill the hemp industry and put hemp farmers out of business, and have vowed to continue the fight. However, absent another legislative change, the loophole will be closed when the new definition of hemp becomes effective in November 2026.

This article discusses the federal and state legal framework pertinent to HSIs, the science behind them, the market for them, and the various attempts to close the “hemp loophole” that resulted in the new federal definition of hemp.  

2.     The Distinction Between Marijuana and Hemp Under Federal Law

Marijuana has been a Schedule I controlled substance since the Controlled Substances Act of 1970 (the “CSA”).[2] Schedule I is reserved for controlled substances that are believed by the Drug Enforcement Agency to have a high potential for abuse and no accepted medical use – think heroin and LSD. Since California legalized marijuana for medical use in 1996, 39 other states, three territories, and the District of Columbia have legalized marijuana for medical use.[3] Twenty-four states, three territories, and the District of Columbia have legalized marijuana for adult recreational use.[4]

A number of sources estimate that state-legal marijuana, which is commonly referred to as “cannabis,” generates approximately $30.1 billion in sales revenue, 425,002 cannabis-industry jobs,[5] and $24 billion in state tax revenue.[6] In addition, the state-legal cannabis industry creates work for all the trades and industries needed to finance and build each of the state cannabis markets, which include cultivation, manufacturing, distribution through dispensaries, and all of the business functions that are attendant to growing, manufacturing, and selling an agricultural product on a mass scale.

The state-legal cannabis market exists, notwithstanding the federal prohibition of marijuana, because, for the most part, the federal government’s policy since 2013 has been to defer cannabis law enforcement activities to those states that have legalized cannabis for adult or medical uses.[7] Each of those states has erected a framework of regulations intended to prevent the diversion of cannabis to illicit markets and to ensure that it is grown, processed, and sold with safety guardrails, including lab testing and labeling requirements regarding ingredients and THC potency.

With the  2014 Farm Bill, Congress changed the definition of Schedule I marijuana in the CSA to exclude cannabis with a delta-9-THC concentration of not more than 0.3% on a dry weight basis.[8] Such cannabis was termed “industrial hemp” and could be grown and used for industrial purposes, provided that a state department of agriculture or university of higher education had been approved by the USDA to participate in a “Hemp Research Pilot Program.”  While a number of states and universities were approved, the 2014 Farm Bill did not result in widescale hemp cultivation and use for industrial purposes. According to the USDA, in 2018, just over 90,000 acres of hemp were grown by U.S. farmers.[9]

Given the declining use of tobacco products in the U.S., states that had traditionally grown tobacco, like Kentucky, were particularly interested in the possibility that industrial hemp could become a replacement crop for tobacco farmers. In 2018, Kentucky Senator Mitch McConnell championed a new definition of hemp to be included in the 2018 Farm Bill. The new definition sought to eliminate the 2014 rule requiring “institutions of higher education and State departments of agriculture” be involved in the production of hemp.[10]

Under the 2018 Farm Bill, hemp was defined as:

the 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.[11]

The legislative record shows that McConnell and other legislators were comfortable legalizing hemp because they considered the 0.3% delta-9 THC threshold low enough to preclude intoxicating effects, distinguishing it from marijuana.[12] As McConnell stated in 2018: 

Consumers across America buy hundreds of millions in retail products every year that contain hemp. But due to outdated Federal regulations that do not sufficiently distinguish this industrial crop from its illicit cousin, American farmers have been mostly unable to meet that demand themselves. It has left consumers with little choice but to buy imported hemp products from foreign-produced hemp.[13]

The 2018 Farm Bill granted the USDA supervisory authority over the production of hemp and preserved the FDA’s authority over foods, drugs, and cosmetics containing hemp.[14] The 2018 Farm Bill also prohibited states from interfering with the transportation of hemp across state lines. As a result, hemp could be transported and potentially distributed in interstate commerce. Marijuana, meanwhile, was grown, manufactured, and sold in only intrastate markets.

3.     The CBD Wave

Under the 2018 Farm Bill, every single state adopted a hemp program or deferred producer license authority to the USDA.[15] Farmers in 21 states reported planting hemp in 2024 under the 2018 Farm Bill.[16] Of the 328 million acres used as cropland in the U.S. in 2024,[17] there were 45,294 industrial hemp acres planted, or 0.0138% of all U.S. cropland.  Approximately 32,694 acres of hemp were harvested, and among those harvested hemp acres, 11,827 acres were to be used for the extraction of essential oils like CBD.[18]

According to industry analysts, U.S. sales of CBD products soared to $4.1 billion in 2019, up 562% from about $627 million in 2018, underscoring just how massive the first full year of hemp-CBD legality turned out to be.[19] Products were stocked in ordinary retail outlets, including national pharmacy chains like CVS, Walgreens, and Rite Aid, who announced plans to carry CBD topical products in several states.[20] Health supplement retailers (e.g. The Vitamin Shoppe) similarly introduced CBD oil capsules and tinctures in hundreds of stores in 2019.[21] These mainstream retailers played a significant role in legitimizing CBD products to consumers by associating their well-known brands and making the CBD products available in convenient and familiar locations.

Federal regulators facilitated the CBD gold rush by choosing to exercise “enforcement discretion” relating to CBD products.[22] The FDA had not yet promulgated specific CBD rules, but tacitly permitted CBD in ingestible products by announcing it would not take aggressive enforcement action. The FDA took a hands-off approach so long as companies avoided outrageous or “over-the-line” health claims or presented egregious safety issues.[23]

By mid-2019, CBD products were available in a bewildering variety of forms and outlets, including e-commerce websites like Amazon, independent brick-and-mortar CBD boutiques, gas stations, convenience marts (particularly CBD-infused shots or gummies by the checkout), and big vitamin chains. Even major grocery companies tested topical CBD balms in their wellness aisles. The boost in CBD retail sales helped the cannabis industry as a whole. Broad distribution of CBD led U.S. retail sales of all cannabis-related products (including CBD) to jump 24% in 2019, illustrating how significant CBD was to overall cannabis sector growth.[24]

In the later parts of 2019, the CBD market started to experience growing pains. As supply grew rapidly, prices for hemp biomass and all forms of its products dropped.[25] Many analysts had previously predicted continued robust growth through 2020; for instance, Brightfield Group initially forecast the U.S. CBD market would reach $8.1 billion in 2020, but this proved overly optimistic.[26] In reality, growth slowed markedly. Brightfield revised its estimate of the 2020 market size down to $4.7 billion, expecting little to no growth from the previous year.[27]

By early 2020, roughly 3,000 CBD brands were jockeying for position, but by end of 2021 it was clear that many would not survive.[28] Bethany Gomez of Brightfield Group had predicted an “extinction event” for CBD brands in 2020 – and indeed, through 2020 and 2021, hundreds of smaller CBD companies quietly folded or were acquired.[29] The larger players also struggled to grow revenue in this climate. For instance, CV Sciences (maker of the popular PlusCBD Oil line) and Charlotte’s Web, two of the top-selling US CBD brands, reported revenue declines in 2021 and substantial losses.[30] Many in the industry began speaking openly of a “CBD market correction.” After the frenzy of product launches in 2019 and holding pattern of 2020, the reality of an overcrowded, under-regulated market set in. Companies that had ridden the wave now faced stiff competition and thinner margins. CBD companies undertook layoffs and cost-cutting by 2022 to survive the prolonged slump.[31]

Through the market struggles, the FDA still did not issue regulations for CBD products for human consumption. On the contrary, in January 2023, notwithstanding its regulatory authority over foods and beverages containing hemp, the FDA stated that the regulatory pathways established under the FDCA were inadequate for CBD, and that Congress, working with the FDA, should create a new regulatory pathway.[32]

4.     The “Hemp Loophole” and Proliferation of Products Containing HSIs

The stagnation of the CBD consumer product market combined with sporadic enforcement by the FDA – warning letters directed at a handful of products marketed with the most egregious health claims – coincided with, if not led to, the emergence of HSIs in 2022 and the exploitation of the “hemp loophole” from 2022-25.

Chemists have known that CBD can isomerize into THC under acid conditions since the 1960s,  and the glut of CBD distillate resulting from the stagnation of CBD products presented an opportunity for producing intoxicating substances containing synthetic THC.[33] Because the 2018 Farm Bill definition legalized hemp derivatives, extracts, cannabinoids, and isomers, hemp-derived CBD could be altered through processes like isomerization, acetylation, and hydrogenation to produce intoxicating substances like delta-8 THC, delta-9 THC, delta-10 THC, THC-O Acetate, Hexahydrocannabinol (HHC), and Tetrahydrocannabiphorol (THCP),[34] while arguably remaining in compliance with the 2018 Farm Bill’s definition of hemp. This became known as the “hemp loophole.”[35]

In 2022, products containing HSIs began appearing in stores throughout the U.S., especially in states that had not legalized marijuana for adult or medical use.[36] Gummies (typically in neon colors and fruit flavors) were the top-selling product, often in packages of 10–40 with total THC content ranging from 100 mg up to as high as 1000 mg.[37] Disposable vape pens and cartridges were another staple, delivering potent hits of delta-8 or HHC in flavors mimicking popular cannabis strains (e.g. “Blue Dream” delta-8).[38] Beverages emerged too: by 2023, convenience stores carried hemp-derived THC sodas and seltzers. One example was a seltzer called “Bong Water” with 25 mg of intoxicating THC per can.[39] Even snack foods were infused: infamous knockoffs like “Trips Ahoy” cookies[40] and THC-infused Dorito look-alikes[41] mimicked household brands. This trend of “copycat” marketing drew legal threats from major food companies and concern from the FDA and FTC because of its appeal to children.[42] Product branding often leaned on psychedelic or cannabis imagery but avoided explicit marijuana leaves to maintain a veneer of legality. By 2025, the market even saw celebrity-endorsed hemp-derived THC products.[43]

When major alcohol distributor and retailer Total Wine began selling intoxicating hemp beverages in its stores in November 2023, the hemp beverage market exploded like the craft beer market.[44] Beverages containing lower doses of THC derived from hemp, such as CANN (2 mg per 12 oz can),[45] were sold alongside beer. HSI spirits containing hundreds of milligrams of THC in larger bottles, such as Reframe (125 mg in a 750 ml bottle),[46] were sold alongside alcohol spirits. A number of states, Minnesota in particular, embraced HSI beverages, and issued regulations permitting them.[47] The THC seltzer market was valued at $344.7 million in 2023, and is now projected to surpass $2.6 billion by 2030.[48]

5.     The Absence of Federal Enforcement by FDA and DEA

Concerns arose that HSI products posed public health and safety concerns.[49] Rather than issue regulations governing HSIs, the FDA seemed to extend to HSIs the same policy of enforcement discretion it had with respect to CBD and simply warned consumers of safety risks attendant to substances like delta-8 THC. For example, in May 2022, the FDA published guidance titled “5 Things to Know about Delta-8 Tetrahydrocannabinol – Delta-8 THC,” where the FDA stated:

The FDA is aware of the growing concerns surrounding delta-8 THC products currently being sold online and in stores. These products have not been evaluated or approved by the FDA for safe use in any context. Some concerns include variability in product formulations and product labeling, other cannabinoid and terpene content, and variable delta-8 THC concentrations. Additionally, some of these products may be labeled simply as “hemp products,” which may mislead consumers who associate “hemp” with “non-psychoactive.” Furthermore, the FDA is concerned by the proliferation of products that contain delta-8 THC and are marketed for therapeutic or medical uses, although they have not been approved by the FDA. Selling unapproved products with unsubstantiated therapeutic claims is not only a violation of federal law, but also can put consumers at risk, as these products have not been proven to be safe or effective. This deceptive marketing of unproven treatments raises significant public health concerns because patients and other consumers may use them instead of approved therapies to treat serious and even fatal diseases.[50]

In an earlier letter dated September 15, 2021, the DEA expressed its position that “only tetrahydrocannabinol in or derived from the cannabis plant—not synthetic tetrahydrocannabinol” was subject to exclusion from control as hemp under the 2018 Farm Bill.[51] In another letter dated February 13, 2023, the DEA expressed again that “Delta-9-THCO and delta-8-THCO do not occur naturally in the cannabis plant and can only be obtained synthetically, and therefore do not fall under the definition of hemp.”[52] Nevertheless, like the FDA, the DEA’s enforcement with respect to products containing HSIs was sporadic at best.

In the absence of federal regulations or enforcement curbing the proliferation of HSIs, states implemented their own regulations based on concerns that HSIs were unsafe and being marketed to children. By 2021, more than a dozen states had imposed outright bans on delta-8 (often by clarifying that all THC isomers are controlled substances) and several others set age limits or potency caps.[53] For example: Colorado (an adult-use marijuana state) declared in May 2021 that chemically converting CBD to delta-8 THC was not allowed in its regulated cannabis market and that delta-8 products could not be sold to consumers in the state; New York banned delta-8 via regulation in 2021, adding “any THC isomer derived from hemp” to its controlled substances list; West Virginia and Rhode Island likewise legislated delta-8 and delta-10 as controlled substances; Kentucky’s legislature imposed tight regulations on intoxicating hemp products in 2023 after a spike in delta-8 sales; and West Virginia passed a law in 2023 adding delta-8 THC to its Schedule I explicitly. By 2025, the number of bans on delta-8 THC grew to 23 states.[54]

6.     The 2025 Appropriations Bill Provides an Opening to Close the Loophole

As the market for THC beverages and other intoxicating hemp products grew, so too did a divide between the manufacturers and distributors of those products and the operators of state-legal cannabis cultivations and dispensaries.[55] The state-legal cannabis industry evolved over decades and operates under highly stringent state laws and regulatory frameworks aimed at public safety that make operations cost-intensive. The federal prohibition of cannabis results in additional costs that can be back-breaking for small businesses. For example, under the IRS Tax Code Section 280E, state-legal cannabis businesses cannot deduct normal business expenses, resulting in a disproportionately high tax rate. The state-legal cannabis industry operates with limited to no commercial banking, credit cards, or access to public markets, leading to borrowing costs that are exceedingly high. Federal IP and bankruptcy protection are also unavailable. As a result, the state-legal cannabis market’s growth has been stifled. In contrast, HSI products masquerading as federally legal hemp are not saddled by the same federal regulatory burdens or state regulations aimed at public safety.

Hemp industry advocates claimed that the 2018 Farm Bill legalized HSI products because they are derived from hemp, and that state legislation restricting HSI products violates the U.S. Constitution’s Supremacy Clause, Due Process Clause, and Dormant Commerce Clause. However, recent decisions by federal appeals courts ruled that the 2018 Farm Bill does not prevent states from regulating HSI products.

For example, the Fourth Circuit Court of Appeals recently held that plaintiffs had not demonstrated a likelihood of success on the merits on any of their claims of express preemption, field preemption, or conflict preemption, and as a result, the Court declined to preliminarily enjoin Virginia’s regulation limiting “total [THC]” to 0.3% and banning HSIs.[56] A similar holding was reached in the Eighth Circuit, where the Appeals Court reversed a District Court’s injunction of an Arkansas statute banning HSIs.[57] And the Tenth Circuit held in October of 2025 that a Wyoming statute banning synthetic hemp and products with more than 0.3% total THC was not federally preempted, not void for vagueness, and did not violate the dormant commerce clause or plaintiff’s due process rights.[58] The courts thus far have been consistent, holding that states can supplement federal law with their own additional restrictions and limitations on the production and sale of hemp and hemp-derived goods.

In 2024, as Congress considered a new Farm Bill, advocates for regulated cannabis lobbied to close the loophole and advocates for products containing HSIs lobbied to keep the 2018 Farm Bill definition unchanged. Representative Mary Miller of Illinois proposed what became known as the “Miller Amendment,” language that sought to change the definition of hemp to include only naturally occurring, naturally derived, and non-intoxicating cannabinoids.[59] Hemp manufacturers heralded this as a devastating proposal and a “hemp killer,” while proponents of the amendment promoted its necessity for public safety.[60] While the Miller Amendment was included in the measure, the 2018 Farm Bill was extended rather than passage of a new Farm Bill that year, and the hemp provisions were sidelined.

By 2025, frustration at the state level coalesced in a remarkable bipartisan effort. On October 24, 2025, a coalition of 39 state and territory Attorneys General sent a letter to Congress urging an immediate fix to the federal hemp definition.[61] They emphasized that “intoxicating hemp-derived THC products have inundated communities . . . due to a grievously mistaken interpretation of the 2018 Farm Bill.”[62] The Attorneys General highlighted the potency of some of these products, the marketing to kids, and the lack of testing/age limits. This unusual coalition – nearly 80% of state AGs agreeing on a drug policy issue – underscored the consensus that federal action was needed to close the hemp loophole. It set the stage for Congress’s response later that fall. The American Distilled Spirits Alliance, Beer Institute, Distilled Spirits Council of the U.S., Wine America, and Wine Institute, and the Consumer Brands Association sent similar letters urging Congress to ban HSIs.[63]

In dramatic fashion, Senator McConnell and Senator Rand Paul took opposing views as to whether and how to close the loophole. Senator McConnell, who sponsored the 2018 Farm Bill’s hemp provisions in the name of creating a market for industrial hemp, made clear that it was never his intention to create a market for intoxicating substances derived from hemp.[64] Accordingly, he supported closing the loophole, stating:

While some may masquerade as advocates for hemp farmers, even sometimes threatening to hold up government funding over this issue, I'll continue to work on behalf of Kentucky's farmers while protecting our children — not only in my state, but in yours as well.[65]

In contrast, Senator Paul vowed to oppose closing the loophole in the name of the hemp industry and hemp farmers, stating: “This is the most thoughtless, ignorant proposal to an industry that I've seen in a long, long time.”[66]  Senator Paul voted against the appropriations bill in protest.

Although a new Farm Bill is supposed to be passed every five years, the 2018 Farm Bill was extended in 2023, 2024, and 2025.[67] As a result, a change to the 2018 definition of hemp was going to have to wait until 2026 if it was to happen by way of a Farm Bill. However, the government shut-down in 2025 presented an opportunity, and those lobbying to close the loophole got a new hemp definition into the appropriations bill. While widely supported by members of Congress, the Bill passed over criticism and protest.[68] Nonethless, several members of Congress, including Senators Rand Paul, Amy Klobuchar, and Tina Smith, stated they would seek to save the hemp industry.[69] After the bill passed, the U.S. Hemp Roundtable raised a flag and announced an industry campaign to regulate, not ban, hemp.[70]

The new definition of hemp, which will become effective in November 2026, prohibits HSIs and restricts the total amount of naturally occurring THC that can be in finished products.[71] Hemp industry advocates, who now largely rely on THC-based products, claim the hemp industry will be ruined once the new definition is in place.

The new definition of hemp is:

the 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 total tetrahydrocannabinols concentration (including tetrahydrocannabinolic acid) of not more than 0.3 percent on a dry weight basis.

The term includes industrial hemp, and expressly excludes synthetic cannabinoids, including naturally-occurring but synthetically made cannabinoids, and intermediate hemp products that are synthetic or contain more than 0.3% total THC.

The new law also excludes any final hemp-derived cannabinoid products containing “greater than 0.4 milligrams combined total per container” of total THC or “other cannabinoids that have similar effects” as THC. The new law also directs the FDA to identify all naturally occurring cannabinoids, intoxicating forms of THC, and provide guidance on the term “container.”[72]

Importantly, the new definition of hemp distinguishes industrial hemp and hemp-finished products for human consumption so as to ensure that the original intent of the 2018 Farm Bill’s legalization of hemp for industrial purposes is achieved.

7.     What’s Next for Hemp Products

The new hemp language has come under fire by HSI product manufacturers and advocates, who claim that the market for HSI products has been erased overnight. However, the new legislation does not ban hemp. Provided products containing naturally occurring hemp cannabinoids fall within the total THC threshold and the milligram per serving limit of the new law, they are federally legal. While restrictive, those limits provide a pathway for hemp product manufacturers to continue to do business without selling products containing intoxicating substances under the guise of federally legal hemp. Hemp farmers, likewise, are free to continue to grow hemp for industrial purposes and in compliance with the new restrictions on total THC. Consumers who want to purchase cannabis may still do so under state adult-use and medical cannabis programs. Significantly, it remains to be seen whether and how the DEA and other federal agencies will enforce the new definition of hemp. Given the federal cannabis policy since 2013 has largely been to defer to states the regulation of cannabis activities that are legal under state adult-use and medical marijuana programs, but illegal under the CSA, there is a possibility that HSIs may continue to be marketed beyond November 2026 under the new definition of hemp.[73] There is also likely to be a push by the hemp industry for federal and/or state regulation of HSIs so they may continue to be marketed, and THC beverage makers may advocate for those products to be regulated by the Bureau of Alcohol, Tobacco, Firearms and Explosives.

In the end, unlike with 2018 Farm Bill, the intent of the 2025 definition of hemp is clear: preserve industrial hemp, restrict the levels of intoxicating THCs, and prohibit unsafe and unregulated HSIs.   

[1] Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026, Pub. L. 119-37, § 781 (codified at 7 U.S.C. § 1639o) (the “Appropriations Bill”).

[2] Pub. L. 91-513, Title II, 84 Stat. 1236 (codified as amended at 18 U.S.C. 801 et seq.).

[3] Cannabis Overview, Nat’l Conf. of State Legis.’s, June 27, 2025, https://www.ncsl.org/health/state-medical-cannabis-laws.

[4] Id.

[5] The 2025 Jobs Report, Vangst, https://www.vangst.com/2025-jobs-report.

[6] Lyle Daly, Marijuana Tax Revenue by State, The Motley Fool, Nov. 21, 2025, https://www.fool.com/research/marijuana-tax-revenue-by-state/.

[7] James M. Cole, Guidance Regarding Marijuana Enforcement, Aug. 29, 2013 (available online at https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf).

[8] Agricultural Act of 2014, Pub. L. 113-79, 128 Stat. 649 § 7606 (defining “Industrial Hemp”).

[9] Mark, Tyler, Jonathan Shepherd, David Olson, William Snell, Susan Proper, and Suzanne Thornsbury, Economic Viability of Industrial Hemp in the United States: A Review of State Pilot Programs, EIB-217, U.S. Dept. of Agric., Econ. Res. Serv. (Feb. 2020).

[10] 2014 Farm Bill, Pub. L. 113-79, 128 Stat. 649 § 7606 (previously codified at 7 U.S.C. § 5940(b)(1)(B)).

[11] 2018 Farm Bill, Pub. L. 115-334, 132 Stat. 4490 § 10113 (codified at 7 U.S.C. § 1639o).

[12] Mitch McConnell, Growing Kentucky’s Economy with Hemp, Richmond Register, Apr. 20, 2018, https://www.richmondregister.com/opinion/mcconnell-growing-kentucky-s-economy-with-hemp/article_8c446f7c-4758-11e8-aea2-5fddfd73e0bc.html (“[B]ecause 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.”).

[13] 164 Cong. Rec. S4690 (daily ed. June 28, 2018) (statement of Sen. McConnell).

[14] Establishment of a Domestic Hemp Production Program, 86 Fed. Reg. 5,596 (Jan. 19, 2021) (codified at 7 C.F.R. pt. 990, effective March 22, 2021).

[15] Status of State and Tribal Hemp Production Plans for USDA Approval, U.S. Dept. of Agric., Agric. Mkting Serv., Aug. 28, 2024, https://www.ams.usda.gov/rules-regulations/hemp/state-and-tribal-plan-review

[16] National Hemp Report, U.S. Dept. of Agric., Nat’l Agric. Stat. Serv., Apr. 17, 2025, https://esmis.nal.usda.gov/publication/national-hemp-report.

[17] Total Cropland used for crops stood at 328 million acres in 2024, U.S. Dept. of Agric., Econ. Res. Serv., Apr. 23, 2025, https://www.ers.usda.gov/data-products/charts-of-note/chart-detail?chartId=111436.

[18] National Hemp Report, supra.

[19] Virginia Lee, Who Consumes CBD?, Cannabis Business Times, March 20, 2020, https://www.cannabisbusinesstimes.com/home/article/15691098/who-consumes-cbd. (citing 2019 CBD Market Report, Brightfield Group, https://content.brightfieldgroup.com/2019-us-cbd-market).

[20] Kira Hunter, 3 big-box drugstore chains rolling out hemp CBD products in 2019, New Hope Network, April 16, 2019, https://www.newhope.com/retailers/3-big-box-drugstore-chains-rolling-out-hemp-cbd-products-in-2019.

[21] Rachel French, The Vitamin Shoppe to carry CBD following FDA’s move to exercise ‘enforcement discretion’, Supply Side Supplement Journal, April 18, 2019, https://www.supplysidesj.com/supplement-regulations/the-vitamin-shoppe-to-carry-cbd-following-fda-s-move-to-exercise-enforcement-discretion-.

[22] Rachel French, The Vitamin Shoppe to carry CBD following FDA’s move to exercise ‘enforcement discretion’, supra.

[23] Id.

[24] 2020 Insights on the United States Retail Market for Cannabis and CBD, Business Wire, March 23, 2020, https://www.businesswire.com/news/home/20200323005523/en/2020-Insights-on-the-United-States-Retail-Market-for-Cannabis-and-CBD---Trends-and-Opportunities---ResearchAndMarkets.com.

[25] Hemp Prices Set to Decline, Market Oversupply Forecast, No-Till Farmer, Sept. 30, 2019, https://www.no-tillfarmer.com/articles/9161-hemp-prices-set-to-decline-market-oversupply-forecast.

[26] Assessing Retail Demand for CBD in 2020 & Beyond, Hemp Benchmarks, May 5, 2021, https://www.hempbenchmarks.com/hemp-market-insider/assessing-retail-demand-for-cbd/.

[27] Id.

[28] How to Navigate the Complicated World of CBD in Retail, Hemp Industry Daily, at 27 (2020).

[29] Id. at 28.

[30] Hank Schultz, Major CBD brands report steep annual sales declines, Supply Side Supplement Journal, Apr. 5, 2023, https://www.supplysidesj.com/supplements/major-cbd-brands-report-steep-annual-sales-declines.

[31] Id.

[32] Janet Woodcock, M.D., FDA Concludes that Existing Regulatory Frameworks for Foods and Supplements are Not Appropriate for Cannabidiol, Will Work with Congress on a New Way Forward, FDA, Jan. 26, 2023, https://www.fda.gov/news-events/press-announcements/fda-concludes-existing-regulatory-frameworks-foods-and-supplements-are-not-appropriate-cannabidiol.

[33] Brett E. Erickson, Delta-8-THC craze concerns chemists, C&EN, Aug. 30, 2021, https://cen.acs.org/biological-chemistry/natural-products/Delta-8-THC-craze-concerns/99/i31.

[34] Id.

[35] Rob Mentzer, A loophole in federal marijuana law has led to the creation of new THC product, NPR, January 4, 2022, https://www.npr.org/2022/01/04/1070338052/a-loophole-in-federal-marijuana-law-has-led-to-the-creation-of-new-thc-product.

[36] E.g., Everyday Delta, https://everydaydelta.com/; Flying Monkey, https://flyingmonkeyusa.com/; Exhale Wellness, https://www.exhalewell.com/; Hometown Hero, https://hometownhero.com/; Hemp Bombs, https://hempbombs.com/.

[37] Kurativ, https://kurativcbd.com/products/delta-8-gummies (40 neon colored gummies with total delta-8 THC content of 1,000 mg).

[38] E.g., TribeTokes, https://tribetokes.com/delta-8-thc-vape-carts-blue-dream-hybrid/.

[39] E.g., UnCorkIt Liquor Store, https://uncorkitchicago.com/shop/?brand=Bong+Water.

[40] E.g., Haute Health, https://hautehealth.club/shop/cannabis-edibles/trips-ahoy-cookies-500mg-thc/.

[41] E.g., Emily Kyle, MS, RDN, Cannabis-Infused Doritos aka Doweedos, Emily Kyle Nutrition, June 11, 2022, https://emilykylenutrition.com/cannabis-doritos-doweedos/.

[42] Maya Davis, FDA, FTC issue warnings to companies selling copycat snacks with delta-8 THC, July 16, 2024, https://www.cnn.com/2024/07/16/health/fda-ftc-thc-snacks-letters.

[43] Kathleen Willcox, Celebrities are Backing THC Drinks, AOL.com, Oct. 1, 2025, https://www.aol.com/articles/celebrities-backing-thc-drinks-ones-133000729.html.

[44] Hilary Bricken, Cannabis Drinks Hit Total Wine, Husch Blackwell, Nov. 6, 2023, https://www.cannabislawnow.com/2023/11/cannabis-drinks-hit-total-wine/.

[45] CANN, https://drinkcann.com/.

[46] Reframe, https://drinkreframe.com/.

[47] Larry Morgan, Minnesota legalizes THC edibles, MNCPA, Sept. 30, 2022, https://www.mncpa.org/resources/publications/footnote/october-november-2022/minnesota-legalizes-thc-edibles/.

[48] Javier Hasse, Weed in a Can: How Cannabis Drinks Are Changing The Ritual Of Drinking, Forbes, May 19, 2025, https://www.forbes.com/sites/javierhasse/2025/05/19/how-cannabis-drinks-are-reshaping-booze/.

[49] Alyssa F. Harlow, Adam M. Leventhal, Jessica L. Barrington-Trimis, Closing the Loophole on Hemp-Derived Cannabis Products, 328 JAMA No. 20 (Nov. 4, 2020) (advocating for regulations to support public health).

[50] 5 Things to Know about Delta-8 Tetrahydrocannabinol, FDA, May 4, 2022, https://www.fda.gov/consumers/consumer-updates/5-things-know-about-delta-8-tetrahydrocannabinol-delta-8-thc.

[51] Nathalie Bougenies, The DEA Declares Delta-8 THC is Not a Controlled Substance… But Does It?, Above the Law, Nov. 19, 2021, https://abovethelaw.com/2021/11/the-dea-declares-delta-8-thc-is-not-a-controlled-substance-but-does-it/.

[52] DEA Concludes Delta-8 and Delta-9 THC-O are Controlled Substances, Center for U.S. Policy, Feb. 28, 2023, https://centerforuspolicy.org/dea-concludes-delta-8-and-delta-9-thc-o-are-controlled-substances/.

[53] Brett E. Erickson, Delta-8-THC craze concerns chemists, supra.

[54] Anthony Martinelli, Every State That Has Banned Hemp THC, June 24, 2025, https://themarijuanaherald.com/2025/06/every-state-that-has-banned-hemp-thc/.

[55] Natalie Fertig, Hemp and marijuana go to war, POLITICO, May 21, 2024, https://www.politico.com/news/2024/05/21/hemp-marijuana-farm-bill-00159040.

[56] Northern Virginia Hemp and Agriculture, LLC v. Virginia, 125 F.4th 472 (4th Cir. 2025).

[57] Bio Gen LLC v. Sanders, 142 F.4th 591 (8th Cir. 2025).

[58] Green Room LLC v. Wyoming, 157 F.4th 1196 (10th Cir. 2025).

[59] Amendment to H.R. 8467 Offered by Mrs. Miller of Illinois (May 22, 2024), https://docs.house.gov/meetings/AG/AG00/20240523/117371/BILLS-118-HR8467-M001211-Amdt-35.pdf.

[60] What is the Miller Amendment? Republican Miller’s Hemp Killer Explained, Cannabis Law Report, https://cannabislaw.report/what-is-the-miller-amendment-republican-millers-hemp-killer-explained/.

[61] 39 State and Territory Attorneys General Call for Clarification of Federal “Hemp” Definition, Nat’l. Assoc. of Attys. Gen., Oct. 24, 2025, https://www.naag.org/press-releases/bipartisan-coalition-of-39-state-and-territory-attorneys-general-urges-clarify-federal-definition-of-hemp/.

[62] Id. William Skipworth, New Hampshire’s Formella and 38 other state AGs ask Congress to ban hemp THC products, New Hampshire Bulletin, Nov. 4, 2025, https://newhampshirebulletin.com/briefs/new-hampshires-formella-and-38-other-state-ags-ask-congress-to-ban-hemp-thc-products/.

[63] Alcohol Industry Urges Congress to Regulate Intoxicating Hemp Industry, Cannabis Law Solutions, Nov. 10, 2025, https://cannabislawpa.com/2025/11/10/alcohol-industry-urges-congress-to-regulate-intoxicating-hemp-industry/.

[64] Tony Lange, Intoxicating Hemp Product Ban Included in Deal to Reopen Government, Cannabis Bus. Times, Nov. 10, 2025, https://www.cannabisbusinesstimes.com/hemp/news/15771427/hemp-product-ban-included-in-deal-to-reopen-government (quoting McConnell, “my 2018 hemp bill sought to create an agricultural hemp industry, not open the door to the sale of unregulated, intoxicating, lab-made, hemp-derived substances with no safety framework.”).

[65] Joe Sonka, McConnell, Paul clash over Senate provision that critics say will destroy US hemp industry, Louisville Public Media, Nov. 11, 2025, https://www.lpm.org/news/2025-11-11/mcconnell-paul-clash-over-senate-provision-that-critics-say-will-destroy-us-hemp-industry.

[66] Id.

[67] Randy Addison Aussenberg, Jim Monke, Megan Stubbs, Expiration of the 2018 Farm Bill and Extension for 2025, CRS Report R47659, Dec. 26, 2024, https://www.congress.gov/crs-product/R47659.

[68] Nathaniel Weixel, Hemp industry battles to save THC products from ban: 5 things to know, The Hill, Nov. 14, 2025, https://thehill.com/policy/healthcare/5606807-hemp-loophole-government-funding-bill/ (quoting Senator Paul as saying “This is the most thoughtless, ignorant proposal to an industry that I’ve seen in a long, long time”).

[69] Steve Karnowksi, Gene Johnson, What a federal ban on THC-infused drinks and snacks could mean for the hemp industry, Associated Press, Nov. 28, 2025, https://apnews.com/article/hemp-thc-drinks-ban-law-8d77842cb250291a178db6f9d39f8b7e.

[70] It Ain’t Over for Hemp, U.S. Hemp Roundtable, Nov. 13, 2025 (arguing calls for bans are based on misinformation and bans would prohibit most non-intoxicating products).

[71] Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026, Pub. L. 119-37, § 781 (codified at 7 U.S.C. § 1639o)

[72] Id.

[73] Kyle Jaeger, It's 'Unclear' How Feds Will Enforce Hemp THC Product Ban, Congressional Researchers Say, Citing Limited FDA And DEA Resources, Marijuana Moment, Dec. 5, 2025, https://www.marijuanamoment.net/its-unclear-how-feds-will-enforce-hemp-thc-product-ban-congressional-researchers-say-citing-limited-fda-and-dea-resources/.