A Brief History of Hemp in Ameria, Part III

The 2018 Farm Bill—Hemp is Federally Legalized and a Gold Rush Commences 

Thanks to critical support from then-Senate Majority Leader Mitch McConnell (R), representing the hemp-friendly state of Kentucky, the 2018 farm bill included language legalizing hemp. Section 10113, "Hemp Production," removed hemp from the Controlled Substances Act, gave the USDA full regulatory responsibility over hemp production, and asserted a "whole plant" definition of hemp, including "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." 

That last provision was especially significant. It cleared the way for the use of hemp-derived cannabidiol (CBD) and opened the door to the laboratory manipulation of hemp to produce both intoxicating and non-intoxicating cannabinoids. The opening created a veritable gold rush as entrepreneurs rushed to get intoxicating cannabinoid products on store shelves, quickly creating a multi-billion-dollar industry out of thin air. In states where marijuana remained illegal, people could now get high on cannabinoids legally. In states where marijuana was already legal, unregulated hemp-derived intoxicating cannabinoids became competition for highly-regulated marijuana businesses. 

The farm bill's hemp provisions also allowed state agriculture departments to submit hemp programs for approval and regulate cultivation under their state programs. And they helped clear the way for hemp expansion by removing restrictions on banking, water rights, and other regulatory roadblocks, and explicitly authorizing crop insurance for hemp crops.  

The "Hemp Loophole" 

But the 2018 farm bill hemp provisions left several regulatory lacunae. The bill legalized and regulated hemp production, but not manufacturing, extraction, processing, packaging, or retail sales. That left an opening for manufacturers to  find creative ways to develop and market intoxicating compounds like delta-8 THC and THC-A, which weren’t explicitly covered.  

At first, sales of CBD products boomed, with the non-intoxicating cannabinoid sold in myriad forms, from gummies to toothpaste. But entrepreneurs soon realized that delta-8 THC could be synthesized from CBD and the resulting product could be sold commercially without regulation or licensing.

 Delta-9 THC is the THC that produces the marijuana high; Delta-8 naturally occurs in small amounts in cannabis and can create a high similar to delta-9, although somewhat less potent. THC-A products have followed a similar path. THC-A (tetrahydrocannabinolic acid) is a precursor to THC that occurs naturally in the cannabis plant. It does not produce a high, but when heated converts to THC. Innovative producers began selling hemp-derived THC-A products that contained less than 0.3 percent THC but much higher levels of THC-A. All consumers needed was a lighter to turn that non-psychoactive THC-A into psychoactive THC.

 Some industry advocates argued that the 2018 farm bill left room for the Food & Drug Administration (FDA) to regulate cannabinoid products under the Dietary Supplement Health and Safety Act of 1994. But the FDA has declined to act, stating in 2023 that "a new framework would require congressional action."

 Under the language of the farm bill, producers could make and market intoxicating hemp-derived products with no federal oversight. This was the "hemp loophole." And it was enough to turn Mitch McConnell from the champion of hemp into a leading proponent of a crackdown on the hemp-derived products industry.

 "Unfortunately, companies … [take] legal amounts of THC from hemp and [turn] it into intoxicating substances," McConnell said during debate on the 2025 farm in November. Those companies, he claimed, use "candy-like packaging" to market it to kids in "easily accessible places like gas stations," he said.

 McConnell aligned himself with anti-cannabis crusaders such as Rep. Andy Harris (R-MD), who authored language effectively banning hemp-derived products in the 2025 farm bill. While McConnell, who was no longer Senate Majority Leader, made a tactical retreat in the face of fierce opposition from fellow Kentucky Sen. Rand Paul (R) by agreeing to remove that language from the Senate version of the farm bill, he managed to get the language inserted into the final language of the appropriations bill Congress passed in November to end the 2025 federal government shutdown.

 The 2025 Hemp Ban

 That bill, the Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026, includes a provision that ends the "hemp loophole," which allowed companies to get around the 0.3 percent THC cap on hemp products by using laboratory processes to extract THC and other cannabinoids from raw hemp.

 The provision also bans synthetic cannabinoids and sets a 0.4 milligram limit on THC in any one container, meaning that many non-intoxicating hemp products, including those containing CBD will also be banned, especially "full spectrum" CBD products that also contain THC. The language of the bill says it bans "any final hemp-derived cannabinoid products containing … greater than 0.4 milligrams combined total" of THC or "any other cannabinoids that have similar effects (or are marketed to have similar effects)." 

This is a much stricter threshold than the 0.3 percent THC by dry weight, and it covers all THC variants, including delta-8, delta-10, THC-A, THC-P, and more.  

That means virtually all hemp products currently on the market will be illegal when the law takes effect next year—unless Congress can be persuaded to come up with a regulatory framework instead before November 12, 2026, when the ban goes into effect. Otherwise, those hemp-derived gummies, vapes, and drinks will be gone—or only available in an unregulated black market.