Marijuana Moment: Ongoing Marijuana Conflict Between States And Feds Could Provide ‘Guidance’ On How New Hemp Ban Will Be Enforced, Congressional Report Says

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There’s significant uncertainty around how a pending federal hemp ban will ultimately be enforced, but “divergent federal and state marijuana laws may provide some guidance,” according to congressional researchers.

With the recriminalization of most consumable hemp products set to take effect next November after President Donald Trump signed a spending bill containing the cannabis prohibition, the Congressional Research Service (CRS) has released a report outlining the policy’s potential impacts. And much of the analysis and considerations for lawmakers turn to existing marijuana policies.

“In recent decades, a number of states have enacted laws relaxing state controls on marijuana and regulating the use of the substance for medical or recreational purposes,” it says. “Marijuana remains a Schedule I controlled substance subject to stringent controls under federal law, and, notwithstanding changes to state laws, most activities involving medical and recreational marijuana violate” the Controlled Substances Act (CSA).

“There are two key reasons why the U.S. Department of Justice (DOJ) does not comprehensively enforce the CSA with respect to marijuana,” the report—which includes a comprehensive analysis of the legislative history around hemp, a version of the cannabis crop that was federally legalized under the first Trump administration—says.

As was detailed in a separate recent CRS report, DOJ “lacks the resources to prosecute all violations of the CSA and generally has not prioritized enforcement against small-scale violations or activities that comply with state law,” the researchers said in the new document. “It remains to be seen to what extent DOJ will prioritize CSA enforcement against products containing psychoactive cannabinoids other than delta-9 THC.”

“If Congress wishes to affect DOJ enforcement priorities, it has the legal authority to increase or decrease funding or dictate how the agency may use appropriated funds,” the report says.

Another reason that for the limited enforcement action against state marijuana laws is the fact that, since 2014, Congress has approved annual appropriations legislation with a rider preventing the Justice Department from using its funds to interfere in states’ medical cannabis programs.

While those same protections don’t apply to recreational marijuana laws, CRS said that, in theory, if states were to reclassify consumable THC products that no long longer meet the federal definition of legal hemp as medical cannabis products instead, “the appropriations rider would apply to those products to the extent they are used for medical purposes in compliance with state law.”

“If Congress wanted to alter the scope of the appropriations rider, including modifying how it applies to hemp-derived cannabinoid products, it could do so by legislation,” it says. “Another consideration for Congress is that, to the extent hemp-derived cannabinoid products are classified as marijuana, any change to CSA regulation of marijuana would also apply to those products.”

The report also takes into consideration the potential impact of a federal marijuana rescheduling proposal that was initiated under the Biden administration and is now pending action by Trump, who said in August that a decision on moving cannabis from Schedule I to Schedule III of the CSA would come within weeks.

“As of the date of publication of this Legal Sidebar, DOJ has not taken final action on the rescheduling proposal,” it says. “Congress has broad authority to change the status of a controlled substance through legislation and could change the status of marijuana before or after DEA makes any final scheduling decision. Congress could choose to act with respect to marijuana generally or with respect to hemp-derived cannabinoid products in particular.”

“Finally, the change to the federal definition of hemp may also affect state cannabis regulation,” the report continues. “Federal and state cannabis laws generally operate independently, and both may apply simultaneously if there is no positive conflict between the two.”

“However, the 2018 farm bill contains a provision that expressly prohibits states from regulating ‘the transportation or shipment of hemp or hemp products … through the State.’ As discussed in a CRS report, there has been significant litigation over whether federal law preempts certain state hemp regulations. It remains to be seen whether and how narrowing the federal definition of hemp will affect that litigation. If Congress enacted legislation to change how hemp-derived cannabinoid products are regulated, that could also affect the pending litigation. If Congress wishes to preempt or not preempt certain state regulations of hemp, it also has the authority to amend the preemption provision.”

Hemp was federally legalized under the 2018 Farm Bill that Trump signed during his first term, with then-Senate Majority Leader Mitch McConnell (R-KY) leading the push to end criminalization of the crop at the time. But the senator has insisted that the policy change wasn’t intended to allow consumable products with THC, so he’s been determined to close what he describes as a “loophole” in the law.

Sen. Rand Paul (R-KY) attempted to remove the hemp ban language from the spending bill Trump signed last month, but a majority of members voted to table his amendment.

Industry stakeholders, advocates and lawmakers are stressing the urgency of the situation. While the hemp ban won’t take effect until one year after enactment, that still leaves little time in the congressional calendar to reverse course or create an alternative regulatory framework for products set to be banned.

Paul, meanwhile, said last month that he’ll soon file a bill to protect the hemp industry from the impending hemp ban. And he also called out alcohol and marijuana interests for allegedly “join[ing] forces” to lobby in favor of the prohibitionist policy change, which will restrict access to a plant and its derivatives that are often used therapeutically.

The senator said the forthcoming legislation would make it so state policy regulating hemp cannabinoid products—with basic safeguards in place to prevent youth access, for example—”supersedes the federal law.”

On the other end of the debate, Rep. Andy Harris (R-MD), who helped secure the hemp re-criminalization language, said last month that he’s not concerned about attempts to undercut the enacted law, brushing off arguments about the possible consequences of the policy change as “desperate mistruths from an industry that stands to lose billions of dollars by selling intoxicants to children.”

Overall, there’s been widespread outcry over the pending hemp re-criminalization law, drawing criticism from parents of cannabis patients, veterinarians and influencers like Joe Rogan, for example.

In response to the hemp ban, Rep. Nancy Mace (R-SC) filed a bill that would strike the contested provisions of the appropriations legislation. But some stakeholders worry that approach could backfire, and they’re hoping to see bipartisan bills introduced in he near future that would provide a robust regulatory model for intoxicating hemp products as a viable alternative to blanket prohibition.

Meanwhile, GOP political operative Roger Stone said last month that Trump was effectively “forced” by Republican lawmakers to sign the spending bill with the hemp THC ban language.

However, a White House spokesperson said prior to the bill signing that Trump specifically supported the prohibition language.

The Democratic governor of Kentucky said last month that the hemp industry is an “important” part of the economy that deserves to be regulated at the state level—rather than federally prohibited, as Congress has moved to do.

Also, a leading veterans organization is warning congressional leaders that the newly approved blanket ban on consumable hemp products could inadvertently “slam the door shut” on critical research.

While many hemp stakeholders say the ban would effectively eradicate the industry–even applying to nonintoxicating CBD products that people use for medical reasons—there’s latent hope that they can strike a compromise deal with lawmakers before the prohibition is implemented this time next year.

Lawmakers such as Sen. Chris Van Hollen (D-MD) also say that window could provide an opportunity to advance legislation to create an alternative regulatory model for consumable hemp products.

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Since 2018, cannabis products have been considered legal hemp if they contain less than 0.3 percent delta-9 THC on a dry weight basis.

The new legislation specifies that, within one year of enactment, the weight will apply to total THC—including delta-8 and other isomers. It will also include “any other cannabinoids that have similar effects (or are marketed to have similar effects) on humans or animals as a tetrahydrocannabinol (as determined by the Secretary of Health and Human Services).”

The new definition of legal hemp will additionally ban “any intermediate hemp-derived cannabinoid products which are marketed or sold as a final product or directly to an end consumer for personal or household use” as well as products containing cannabinoids that are synthesized or manufactured outside of the cannabis plant or not capable of being naturally produced by it.

Legal hemp products will be limited to a total of 0.4 milligrams per container of total THC or any other cannabinoids with similar effects.

Within 90 days of the bill’s enactment, the Food and Drug Administration (FDA) and other agencies will need to publish list of “all cannabinoids known to FDA to be capable of being naturally produced by a Cannabis sativa L. plant, as reflected in peer reviewed literature,” “all tetrahydrocannabinol class cannabinoids known to the agency to be naturally occurring in the plant” and “all other known cannabinoids with similar effects to, or marketed to have similar effects to, tetrahyrocannabinol class cannabinoids.”

The language slightly differs from provisions included in legislation that had previously advanced out of the House and Senate Appropriations panels, which would have banned products containing any “quantifiable” amount of THC, to be determined by the HHS secretary and secretary of agriculture.

The post Ongoing Marijuana Conflict Between States And Feds Could Provide ‘Guidance’ On How New Hemp Ban Will Be Enforced, Congressional Report Says appeared first on Marijuana Moment.

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