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

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.