American hemp farmers are reeling after Republicans slipped a provision banning intoxicating hemp products into the deal to reopen the government. Now, industry insiders say that the hemp industry is about to leap into action to overturn the ban — or face destruction.
Lukas Gilkey is the co-founder and CEO of Hometown Hero, an Austin, Texas-based hemp business that employs about 200 people across three locations and two states. He told Salon that if the new law were allowed to go into effect, it would destroy his business.
“We’re now looking at a potential 0.4 milligram per container THC limit, which effectively would outlaw full-spectrum chapstick, pet treats — I mean, a lot of things that are not necessarily psychoactive,” Gilkey said. “That, I think, is what they’re going after. But it’s essentially a game over for the entire industry if this actually goes into effect.”
Gilkey is referencing the core provision in the new law, which is set to go into effect next year. It sets a limit for the total amount of THC allowed per container to 0.4 milligrams per container — far from enough to feel a buzz when many adult-use cannabis products contain 20% THC or more. This measure is specifically aimed at psychoactive compounds like delta-8 THC, which is essentially a variant of delta-9 THC, the main intoxicating compound in cannabis. Both delta-8 and delta-9 occur naturally in the plant — the difference being the position of a double carbon bond on the molecule — but this distinction has meant each drug is regulated differently. Until this most recent bill was passed, hemp products were regulated by their delta-9 THC content, creating a market for delta-8 and other hemp-derived products like CBD, which is non-intoxicating.
This specific regulation also rests on a legal distinction that exists between hemp and Cannabis sativa, the plant used to produce marijuana extracts like buds, tinctures and concentrates. Although hemp and cannabis are the same species of plant, it’s pretty difficult to get high from the hemp version. The law differentiates between the two based on the plant’s natural THC content, with hemp referring to cannabis that is very low in THC and marijuana referring to cannabis that is high in THC content — typically high enough to get one “stoned.”
“This language merely clarifies the original intent of the 2018 farm bill, rooting out the bad actors and protecting the growing hemp industry.”
For decades, hemp was banned in the United States alongside cannabis, but that largely changed in 2018, when that year’s farm bill, signed by President Donald Trump, legalized the crop in the U.S. A loophole in the law allowed the sale of pretty much any hemp-derived product, spurring some companies to extract high volumes of THC — higher than hemp produces naturally — or create semi-synthetic cannabinoids like HHC to sell something that gets people high.
Even in states that don’t have medical marijuana laws, hemp products have appeared in gas stations, smoke shops and online stores, often with less rigorous quality control. Regulation of hemp varies by state both in terms for farming and standards for products.
It was actually Sen. Mitch McConnell, R-Ky., who championed both the legalization of hemp in 2018 and the new law that de facto bans psychoactive hemp products, explaining that it “restores the original intent” of the 2018 bill.
“Unfortunately, some companies looking to make a quick buck have been exploiting a loophole in the 2018 Farm Bill by taking legal amounts of THC from hemp and turning it into intoxicating substances. They take these synthetic chemicals and use them as ingredients in appealing, snack and candy-like products and distribute them in familiar packaging,” McConnell told Salon in an email. “Industrial hemp and CBD will remain legal for industrial applications — such as seed, stock, fiber, grain oil — or used in drug trials. This language merely clarifies the original intent of the 2018 farm bill, rooting out the bad actors and protecting the growing hemp industry.”
In any case, the new law has sent shockwaves through the hemp industry, which has ballooned since 2018. Whitney Economics estimated in 2023 that the hemp-derived cannabinoid industry had surpassed $28 billion in sales, with the roughly 328,000 workers earning some $13 billion in wages in the industry. The new law puts the viability of many of the businesses into question.
That’s why Gilkey says the hemp industry is pushing to have the new law overturned and to come to a compromise with lawmakers.
“I do not believe this will hold. This industry is very large, and there are a lot of well-funded companies that are already putting together strategies to fight this,” Gilkey said. “And I would argue, in 12 months, this industry is going to be substantially larger than what it is now.”
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The predicament those in the hemp business find themselves in is that they’re stuck between both the alcohol lobby and, perhaps counterintuitively, the state-level marijuana lobby. The alcohol industry has been pushing for bans and regulations on hemp and marijuana products because of the competition they represent. Meanwhile, the marijuana industry has largely welcomed bans or regulations on hemp because marijuana is subject to a different — and often more restrictive — regulatory regime in states where it is legalized.
Despite this, farmers like Ann Guager, who runs Caprock Family Farms with her son Zack Guager, said that she was optimistic because she believes the public is on their side.
“We know that speaking up and calling your lawmakers and taking the time to let people know that these products really do help people and change people’s lives,” Guager said. “We’ve seen how there is power with a mass movement of people. And so we’re hoping that the same thing can happen in this case.”
Guager said that, in Texas, for example, many people turn to hemp products not just for recreation, but in place of medical marijuana products, explaining that many people don’t want to be tracked by the government or be entered into the medical marijuana system just to use THC products. She also said that hemp products are simply more widely available.
Robert Mikos, an expert on federalism in drug law and a professor at Vanderbilt University, told Salon that, despite optimism from people in the hemp industry, they might face pushback from lawmakers who say that the 2018 legalization of psychoactive hemp products was a mistake.
“[The drafters of the bill] thought, ‘hey, you can produce hemp, sell it to people who are going to use it for the CBD. And that’s fine.’ I don’t think the drafters of that bill, or anyone associated with it anticipated that people would be able to transform chemicals from hemp into psychoactive chemicals and keep calling them hemp,” Mikos said.
Mikos also pushed back on what many hemp farmers have said in terms of the bill’s impact on their businesses, saying that if the bill does end up destroying the hemp industry, it would be “yet another unintended consequence of this.”
“I don’t think Congress is trying to destroy the industrial hemp market. I don’t think they’re trying to destroy even the CBD market, people using CBD derived from hemp. I just haven’t seen any basis for that,” Mikos said. “I haven’t seen any lab assays, reports of chemical chromatographs that demonstrate there are no hemp plants out there that one can grow, that stay under the new limits. And a lot of the new limits, they’re really targeting kind of synthetic THC.”
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Mikos also stressed that, whether or not the new law is allowed to go into effect, most of the enforcement is likely to remain the purview of the states, unless the federal government pushes for a crackdown from the DEA or the FDA. Mikos added that, for the states, the question then becomes “How are we going to regulate this?”
“These hemp products that used to be federally legal and now are classified as marijuana, if they want to, states like Tennessee that don’t have a marijuana market, but have a very robust market for psychoactive hemp,” Mikos said. “They might just continue doing what they’re doing, and they might still call it hemp, even though, for purposes of federal law, it’s marijuana, but they might just continue to regulate it the same way they have.”
At the same time, states with a robust legal marijuana market might choose to regulate hemp more strictly.
“The treatment of marijuana and what was considered hemp, that’s really up to the states to decide,” Mikos said.
