The rapid evolution of intoxicating cannabinoids has brought forth significant changes and challenges to both the agricultural and commercial cannabis sectors across the U.S. These new cannabinoids have exposed gaps in state and federal regulatory frameworks, allowing intoxicating substances to be marketed without the stringent level of oversight applied to state-legal cannabis products. These hemp-derived cannabinoids are often sold in gas stations and convenience stores, posing significant risks to consumers, especially minors. The lack of clear federal guidelines has left state attorneys general (AG) grappling with this gray market, leading to calls for legislative action to address the issue comprehensively.

In response to these concerns, a recent amendment to the Farm Bill, introduced by Rep. Mary Miller (R-IL) in late May, seeks to close the loophole created by the 2018 Farm Bill. A similar amendment to a House spending bill was also put forward in early June. These amendments propose to redefine hemp to exclude products containing any detectable level of tetrahydrocannabinol (THC), whether naturally occurring or synthetically derived. By doing so, they aim to restore the original intent of the 2018 Farm Bill, ensure public safety, and level the playing field for state-legal cannabis businesses. Opponents have expressed economic and wellness concerns about the amendments that, although valid, are not enough to outweigh the benefits that consumers, states, and licensed businesses will receive under the amended definition.

Background on the 2018 Farm Bill and Intoxicating Hemp-Derived Products

With the passage of the 2018 Farm Bill, Congress aimed to reintroduce hemp as a legal agricultural commodity in the U.S., while at the same time maintaining the current prohibition of marijuana as a Schedule I controlled substance under federal law. To maintain this distinction, Congress created a clear line between legal “hemp” and illicit, intoxicating “marijuana” by making the definition of hemp contingent on the quantity of delta-9 THC, the most well-known intoxicating cannabinoid at the time, present in the plant or product. The 2018 Farm Bill defined “hemp” as any cannabis plant, including any derivative of the cannabis plant, that contains less than 0.3% delta-9 THC on a dry-weight basis.[1]

After the 2018 Farm Bill became law, it was discovered that while delta-9 THC may be the primary psychoactive ingredient in cannabis, other cannabinoids that also occur naturally (for example, delta-8 THC) could be synthetically created in sufficient quantities to achieve an intoxicating effect. As time progressed, other similar cannabinoids, like delta-10 THC, underwent similar development processes. The argument for the legality of these products goes that, as long as the intoxicating cannabinoid was derived from federally legal hemp (i.e., cannabis with less than 0.3% delta-9 THC), the product containing that cannabinoid is legal under federal law. The Ninth Circuit recently agreed with this argument.[2]

As a result of this ambiguity, a multibillion-dollar industry has emerged that has created massive public health and safety risks through the availability of these products, all while exploiting a loophole that Congress did not intent to leave open. State AGs have begun to act against retailers for selling these products [3] but have also expressed the need for clear direction from Congress.[4]

Details of the Proposed Amendment

In late May, a group of amendments passed through committee in the House that included a proposal to address the intoxicating hemp-derived products loophole. The amendment, introduced by Rep. Mary Miller, would adjust the definition of hemp to include any part of the cannabis plant with a total THC concentration (delta-9, delta-8, tetrahydrocannabinolic acid (THCA), or otherwise) of not more than 0.3% on a dry weight basis. The definition also contains several specific exclusions, including hemp-derived products containing cannabinoids that are not capable of being naturally produced, any cannabinoids “synthesized or manufactured outside of the plant,” and products containing any quantifiable amounts of THC or THCA, or of “any other cannabinoids that have similar effects (or are marketed to have similar effects) on humans or animals” as THC.[5] On June 10, the House Appropriations Subcommittee on Agriculture, Rural Development, Food and Drug Administration, and Related Agencies added nearly identical language to a large-scale spending bill.[6]

This broad definition would seemingly capture the vast majority of the intoxicating hemp-derived products that currently appear in the U.S. Critics of the amendment argue that the definition would also extend to cover most cannabidiol (CBD) products, which can contain nonintoxicating amounts of THC over the legal threshold. As a result, the amendment would arguably eliminate most of the market for unregulated hemp-derived products across the U.S., both intoxicating and nonintoxicating alike. Eliminating the market for intoxicating hemp-derived products would restore the original intent of the 2018 Farm Bill’s hemp provisions and create a safer market for consumers.

Why the Amendment Is Needed

In 2013, after Colorado and Washington became the first states to legalize recreational cannabis for adults, the U.S. Department of Justice issued what has become known as the Cole Memorandum, which outlined the federal government’s enforcement priorities with respect to cannabis regulation in the U.S.[7] These priorities, like preventing cannabis distribution to minors and preventing cannabis-related violence and drugged driving, further important public safety and consumer protection principles. The states, in turn, developed their regulatory frameworks around those principles. Licensed cannabis businesses have complied with these requirements at great expense, and already compete against an illicit cannabis market that can undercut them on cost and price at every opportunity. A total ban on intoxicating hemp-derived products would go a long way in stamping out that illicit market and protecting state-legal markets. As such, the Miller Amendment takes an important step to preserve public safety, protect consumers, and support state-legal markets and businesses.

A. Public Safety and Consumer Protection

Intoxicating hemp-derived products present serious risks to consumers and nonconsumers alike, particularly for young children. The lack of regulatory oversight of these products means that consumers may not be accurately informed of the ingredients or potency of the products, which could lead to adverse health effects. Take, for example, the E-Cigarette or Vaping Associated Lung Injury Epidemic (EVALIE) of 2019, where unregulated cannabis vapor products were being sold in unlicensed businesses, leading to a major public health crisis. Public officials quickly concluded that the crisis was routed primarily in the addition of vitamin E acetate to unregulated THC vapor products.[8] EVALIE underscores the importance of product testing requirements and accurate ingredient disclosures for cannabis products. Regulated state markets do not pose as great a risk because licensed businesses are subject to stringent requirements regarding product ingredients, packaging and labeling, and youth sales restrictions. Additionally, the fact that these products are sold in unlicensed storefronts can mislead consumers into believing that they are legal under state law and/or nonintoxicating, potentially raising additional concerns under state unfair and deceptive trade practice laws.[9] Again, state-legal businesses do not pose this same level of risk.

Children are also particularly at risk to exposure of intoxicating hemp-derived products. Adults sometimes purchase these products and leave them in easily accessible areas, leading to accidental consumption. This risk is particularly acute when products are packaged to resemble typical snacks and candies that children enjoy. Since these products were first introduced, the U.S. has seen skyrocketing rates of visits to hospitals, and calls to poison control centers, nationwide, over accidental consumption of cannabis by children.[10] Legitimate, regulated cannabis products are uniformly subject to severe restrictions on advertising that could appeal to children and child-safe product packaging. By conclusively banning intoxicating hemp-derived products, the Miller Amendment will protect public health and help prevent further incidents of harm.

B. Supporting State Regulation

State governments have spent several years implementing and enforcing experimental cannabis policies, learning from their own challenges and successes, as well as those of other states. In the face of a continued lack of federal involvement, states have developed comprehensive programs to carefully regulate cannabis that further important federal objectives. Congress’ unintentional legalization of intoxicating hemp-derived products in the 2018 Farm Bill has impeded state efforts to enforce their cannabis laws.[11] State regulators are better positioned to oversee hemp-derived products given their experience with cannabis regulation. The Miller Amendment empowers states to implement their own regulations and address other intoxicating cannabinoids within their existing regulatory structures. This approach not only enhances public safety but also respects state autonomy in managing their cannabis markets.

C. Leveling the Playing Field for Regulated Cannabis Businesses

Finally, it should be recognized that licensed cannabis businesses have spent a vast amount of time and resources complying with stringent regulatory requirements in order to access state-legal cannabis markets. Retailers of unlicensed, intoxicating hemp-derived products have not been required to make these investments and can therefore offer these dangerous products much cheaper and easier than licensed businesses.

In some state and local jurisdictions, the application and license fees for a cannabis establishment total in the tens of thousands of dollars,[12] and are sometimes nonrefundable.[13] To submit an application, some jurisdictions require proof of possession of the real property on which the licensed business will be located.[14] Some jurisdictions also require proof of access to a sufficient amount of funds to run the business, the amount of which could be in the millions of dollars.[15] Once the necessary real and personal property has been obtained, businesses must ensure that the premises complies with the state or local jurisdictions’ legal requirements, which often requires enormous investments in security, as well as production and manufacturing processes.

Each of these requirements aim to protect consumers from a particular form of harm. By enacting these stringent regulatory regimes, state governments have made it clear that the sale and consumption of any intoxicating cannabis products should be conducted in accordance with state law. The disparity between licensed, regulated products and intoxicating hemp-derived products undermines the integrity of the legal cannabis market and places compliant businesses at a competitive disadvantage.

Economic and Wellness Impacts of the Amendment

Opponents of the Miller Amendment argue that a complete ban on the market for intoxicating hemp-derived cannabis products will devastate businesses that have invested heavily in this newly legalized industry. From farmers who have dedicated larger portions of their fields to hemp production, to retail locations that provide products directly to customers, businesses have come to rely on the substantial portion of their revenue streams that these new products have come to represent. It seems plausible that such disruptions could lead to significant financial hardship for some business owners and a reduction in employment across those industries. These are, of course, legitimate concerns, but the long-term sustainability of the market for intoxicating cannabis products will certainly depend on robust regulatory oversight.

The same economic argument discussed above could also be applied to state-licensed cannabis businesses, who have made similar investments to comply with state regulatory regimes. However, rather than capitalizing on a legal loophole, these businesses operate within an explicit framework of state legality, and federal permissibility, that does not exist for intoxicating hemp-derived products. The argument therefore carries more weight for a legally compliant business than for an unlicensed dealer in unregulated products.

The removal of the majority of nonintoxicating CBD products on the market in the U.S., although not posing the same level of risk to public health and safety, would further protect consumers and help stand-up state markets while imposing few disadvantages on the consumer. The competitiveness of the licensed industry could continue to keep the prices of these products low, and consumers could purchase them with the confidence that they were produced and sold under strict regulatory oversight.

Why It Matters

The proposed amendments to the federal Farm Bill represent a necessary step toward closing the loophole that has allowed the unregulated market for intoxicating hemp-derived products to flourish across the U.S. By eliminating the market and prohibiting intoxicating hemp-derived cannabis products, these amendments align federal law with the original intent of the 2018 Farm Bill’s changes to the legal status of hemp. As a result, the amendments prioritize public safety, empowers state regulators, and supports regulated cannabis businesses in state legal markets. Although opponents of the amendments have legitimate concerns, the benefits of ensuring a safe and equitable market far outweigh the drawbacks. Consumers, state regulators, and licensed businesses should support these amendments to foster a healthier and more sustainable cannabis industry.

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

[1] 7 U.S. Code § 1639o(1). 

[2] See e.g., AK Futures LLC v. Boyd Street Distro, LLC, 35 F.4th 682, 691 (9th Cir. 2022) (holding that delta-8 THC products are legal under the 2018 Farm Bill’s definition of hemp and are entitled to federal legal protections).

[3] See e.g., Connecticut Attorney General Continues to Target Unlicensed and Unregulated Cannabis Sales, Regulatory Oversight, Troutman Pepper (May 24, 2024), available at

[4] Smith-Gonnell et. al., 21 State AGs Call on Congress to Regulate Intoxicating Hemp Products, Regulatory Oversight, Troutman Pepper (Apr. 3, 2024), available at

[5] See Amendment to H.R. 8467 Offered by Mrs. Miller of Illinois, available at

[6] See Jaeger, Most Consumable Hemp-Based Cannabinoid Products Would Be Banned Under Another GOP Committee’s New Bill, Marijuana Moment (June 10, 2024), available at

[7] Guidance Regarding Marijuana Enforcement, U.S. Department of Justice, Office of the Deputy Attorney General (Aug. 29, 2013), available at

[8] For more information on the EVALIE crises, see Outbreak of Lung Injury Associated with the Use of E-Cigarette, or Vaping, Products, Centers for Disease Control and Prevention (Feb. 2020), available at

[9] As cited above, the Connecticut AG has taken a number of enforcement actions against businesses, citing violations of the state’s consumer protection laws. See Connecticut AG Continues to Target Unlicensed and Unregulated Cannabis Sales, Regulatory Oversight, Troutman Pepper (May 24, 2024), available at

[10] See e.g., Lovelace, Reports of Young Children Accidentally Eating Marijuana Edibles Soar, NBC News (Jan. 3, 2023), available at

[11] See e.g., 3C, LLC v. Rokita, 2024 WL 1348221 (Mar. 29, 2024), where the Indiana Attorney General successfully defeated a challenge to his official opinion that certain hemp-derived intoxicating cannabinoids qualify as controlled substances under the state’s drug prohibition laws.

[12] For example, in Colorado, businesses are subject to a dual license requirement. Retail marijuana stores are subject to a $5,000.00 state application fee, a state license fee between $2,850.00 and $8,200.00, depending on the number of controlling beneficial owners in the business, and an annual renewal application and license fee of $2,300.00. 1 Colo. Code Regs. § 212-3:2-205. The local jurisdiction where the business is located (for our purposes, the County of Boulder) also charges an application fee of $2,500.00, an annual operating fee of $4,000.00, and an accessory license operating fee of $500.00 for each additional license for that business at that location. See Boulder Count Marijuana Licensing Fee Schedule, available at

[13] See e.g. Claim for Refund Form, Colorado Department of Revenue Specialized Business Group, available at (“Application fees are NOT refundable”).

[14] See e.g., 1 Colo. Code Regs. § 212-3:2-220(A)(6) (“Every initial application for a Regulated Marijuana Business License must include all required documents and information including, but not limited to: (6) The deed, lease, sublease, rental agreement, contract, or any other document(s) establishing the Applicant is, or will be, entitled to possession of the premises for which the application is made.”).

[15] See e.g., City of Golden Municipal Code 4.94.100(e)10(d) (requiring liquid funding of at least $250,000); see also N.J. Stat. Ann. § 24:6I-7.2(d)(7)(b) (requiring disclosure of financial statements demonstrating the applicant’s financial ability to implement its business plan).