Attorneys general (AG) from 20 states and the District of Columbia have submitted a letter to Congress requesting that federal lawmakers close the “loophole” created by the 2018 Farm Bill that is widely understood to prohibit state regulation of intoxicating hemp products, including delta-8 tetrahydrocannabinol (THC) products.

Dated March 20, the letter was co-led by Indiana AG Todd Rokita and Arkansas AG Tim Riffen, and signed by the AGs for California, Colorado, Connecticut, District of Columbia, Georgia, Hawaii, Iowa, Kansas, Maryland, Minnesota, Missouri, North Carolina, North Dakota, Oregon, Pennsylvania, South Dakota, Tennessee, Virginia, and Washington. The letter is addressed to U.S. Representatives Glenn Thompson and David Scott, chairman and ranking member, respectively, of the House Committee on Agriculture; and Senators Debbie Stabenow and John Boozman, chair and ranking member, respectively, of the Senate Committee on Agriculture, Nutrition & Forestry.

The letter seeks to influence the committees’ deliberations as Congress embarks upon a new five-year authorization of the Farm Bill.

According to the letter, while the Agricultural Improvement Act of 2018 (commonly referred to as the 2018 Farm Bill) “seemed clear at the time in its intentions — reintroducing industrial hemp as an agricultural commodity, while maintaining existing federal prohibitions on cannabis products and their use … bad actors have exploited the 2018 Farm Bill’s definition of hemp, its protection of derivatives of that plant, and a wrongly perceived federal pre-emption against state-level regulation of these products.” The letter states that “[r]egardless of your Committees’ intentions, the reality is that this law has unleashed on our states a flood of products that are nothing less than a more potent form of cannabis, often in candy form that is made attractive to youth and children — with staggering levels of potency, no regulation, no oversight, and a limited capability for our offices to rein them in.”

The letter asks the federal lawmakers to amend the definition of hemp in the next Farm Bill “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.”

Why It Matters

According to a January 2023 advisory opinion by Rokita, the 2018 Farm Bill instituted changes in federal law to narrow the definition of marijuana to include only cannabis or cannabis-derived material that contains more than 0.3% delta-9 THC on a dry weight basis. The bill added a definition of hemp and specifies that hemp is not marijuana and thus not subject to regulation outside the regulatory framework for the commercial production of hemp established by the bill.

Although the U.S. Drug Enforcement Administration subsequently issued guidance stating that synthetically derived THCs remain Schedule I controlled substances under the Controlled Act, the 2018 Farm Bill has nevertheless led to the establishment of a regulatory gray market for intoxicating delta-8 THC products. These products arguably fall within the bill’s definition of “hemp,” notwithstanding that delta-8 THC must be chemically extracted from the hemp plant and further synthesized to be made in sufficient quantities to be sold commercially.

The state AGs’ letter contends that the market for such products “has exploded” and is worth an estimated $28 billion, “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.”

Our Cannabis Practice provides advice on issues related to applicable federal and state law. Marijuana remains an illegal controlled substance under federal law.