The Congressional Analysis Carrier (CRS) issued a record on Aug. 20 that dives into federal interpretations of hemp, criminal demanding situations to state rules proscribing THC merchandise and concerns for Congress associated with the 2018 Farm Invoice.
The record, authored through Legislative Legal professional Dorothy Kafka, comes as federal and state lawmakers proceed to wrangle over an intoxicating hemp product market that mushroomed all the way through the country following Congress federally legalizing hemp past state pilot techniques just about seven years in the past.
Because the 2018 Farm Invoice, greater than a dozen states have enacted law to totally restrict intoxicating hemp merchandise, whilst different states have banned synthetically derived cannabinoids or explicit sorts of merchandise. In the meantime, some states control the goods as hashish or client items, and others have allowed the goods to stay to be had with out a laws.
Underneath federal legislation, “hashish” is categorised into hemp (under 0.3% delta-9 THC on a dry-weight foundation) and marijuana (above 0.3% THC), Kafka defined within the CRS record. On the other hand, the patchwork of state rules has spread out and not using a transparent course from the government.
“A few of these rules—similar to the ones in Virginia and Arkansas—restrict sure actions involving sure hashish merchandise through together with them of their state managed ingredients rules,” she wrote. “More than a few events throughout the hashish trade have challenged a few of these states’ rules at the flooring that (1) the 2018 Farm Invoice preempts those rules, and (2) the state rules violate the dormant Trade Clause.”
Criminal Demanding situations to State Rules
Associated with the preemption argument, the 2018 Farm Invoice in particular prevents states from regulating the transportation or cargo of hemp “thru” their obstacles (interstate trade) however does no longer prevent states from regulating intrastate hemp trade. Additionally, not anything within the federal law limits states from adopting rules to control hemp extra stringently (simply no longer much less stringently) than the 2018 Farm Invoice.
The U.S. Courtroom of Appeals for the 8th Circuit issued an opinion in June 2025 confirming this, dealing a victory to Arkansas state officers who’ve been making an attempt to put into effect a ban on sure hemp-derived cannabinoids for the previous two years by the use of the passage of Act 629.
Particularly, the plaintiffs if so argued that Congress had meant to “federally offer protection to hemp” within the 2018 Farm Invoice.
“The 8th Circuit rejected this argument, figuring out as an alternative that the textual content and construction of the 2018 Farm Invoice displays that Congress sought after most effective to ‘facilitate state legalization of hemp, if a state desires to,’ and to ‘be certain that different states don’t change into a hurdle to an in-state hemp trade,’” Kafka wrote. “The courtroom defined: “[J]ust as a result of states might legalize hemp beneath the 2018 Farm Invoice does no longer imply they should.”
Underneath the dormant Trade Clause, the government prevents states from passing rules that inhibit interstate trade or that offer in-state protectionist measures that hinder a countrywide marketplace for items and products and services.
When Virginia handed Senate Invoice 903, which become efficient in July 2023, the commonwealth redefined hemp merchandise and business hemp extracts as items containing not more than 0.3% in general THC, which components in THCA and some other type of THC, similar to delta-8.
In a lawsuit that incorporated two hemp companies and one state resident, the plaintiffs argued that S.B. 903 would discriminate in opposition to out-of-state patrons through fighting them from gaining access to Virginia hemp.
The U.S. Courtroom of Appeals for the Fourth Circuit issued an opinion in January 2025 that Virginia’s legislation didn’t discriminate in opposition to out-of-state pursuits as it implemented to in-state and out-of-state patrons alike.
“The courtroom additional held that the legislation does no longer unjustifiably burden interstate trade, and due to this fact it affirmed the district courtroom’s resolution that the plaintiffs failed to ascertain a chance of luck on their dormant Trade Clause declare,” Kafka wrote on this week’s CRS record.
Federal Interpretations
Along with the criminal demanding situations to state rules, Kafka defined how a couple of circuit rulings collide with the Drug Enforcement Management’s (DEA) interpretation of the 2018 Farm Invoice’s definition of hemp, ahead of she introduced 4 key concerns for Congress.
Particularly, the DEA made up our minds in August 2020 that “all synthetically derived tetrahydrocannabinols,” similar to delta-8 THC and THC-O, stay Agenda I federally managed ingredients, in keeping with the company’s intervening time ultimate rule.
More or less a 12 months later, Terrence L. Boos, Ph.D., leader of the Drug and Chemical Analysis Segment of the DEA’s Diversion Keep watch over Department, authored an opinion letter to the Alabama Board of Pharmacy declaring that the DEA believes delta-8 THC synthetically made out of non-cannabis fabrics is a managed substance beneath federal legislation.
Even if intoxicating delta-8 THC is of course happening in hashish, it’s regularly transformed in a lab from nonintoxicating CBD.
The U.S. Courtroom of Appeals for the 9th Circuit issued an opinion in Would possibly 2022 colliding with the DEA’s interpretation, when a federal pass judgement on implemented the DEA’s argument to delta-8 THC in an indicator infringement and copyright dispute between AK Futures LLC and Boyd Side road Distro LLC in Nevada. The pass judgement on dominated that delta-8 THC is criminal beneath the 2018 Farm Invoice.
“The 9th Circuit affirmed, retaining that the plaintiff’s delta-8 THC merchandise have compatibility throughout the statutory definition of hemp for the reason that plaintiff’s uncontradicted proof indicated that the goods have been ‘hemp-derived’ and contained ‘not up to 0.3% of delta-9 THC,’” Kafka wrote within the CRS record. “The courtroom held that the 2018 Farm Invoice definition didn’t rely at the method through which derivatives, extracts and cannabinoids have been produced.”
In February 2023, Boos additionally declared that THC-O used to be a Agenda I managed substance in a letter to global hashish legal professional Rod Kight, a resolution Boos mentioned used to be made on the truth that THC-O does no longer happen naturally within the hashish plant—it’s a semi-synthetic analogue derived from THC.
On the other hand, the U.S. Courtroom of Appeals for the Fourth Circuit issued an opinion in September 2024 that THC-O meets the criminal definition of hemp beneath the 2018 Farm Invoice, once more veering from Boos’ interpretation. The appellate case stemmed from a North Carolina resident, Tonya Anderson, getting fired from her process with Diamondback Funding Team LLC for failing two drug checks. Anderson argued she ate up criminal hemp merchandise, however Diamondback referenced the DEA’s 2023 opinion letter and argued THC-O used to be no longer criminal.
“The Fourth Circuit rejected the defendant’s argument and as an alternative agreed with the 9th Circuit in AK Futures that the 2018 Farm Invoice definition unambiguously establishes that ‘hemp’ comprises ‘all’ cannabinoids, and derivatives and extracts of hashish, as long as they don’t move the 0.3% delta-9 THC threshold,” Kafka wrote. “In keeping with the courtroom, whether or not a substance is thought of as hemp does no longer rely on the way it used to be manufactured however fairly whether or not it comes from hashish.
“The courtroom additionally famous that, in mild of the U.S. Superb Courtroom’s resolution in Loper Vibrant v. Raimondo overturning the Chevron doctrine, the courtroom would no longer wish to defer to DEA’s interpretation although the courtroom had made up our minds that the statutory definition used to be ambiguous [in the 2018 Farm Bill].”
The courtroom made up our minds that the definition of hemp used to be unambiguous.
Concerns for Congress
In mild of the federal interpretations and criminal demanding situations to state rules resulting in uncertainty and war of words over the 2018 Farm Invoice’s definition of hemp, Kafka presented 4 concerns for Congress shifting ahead.
1.) Will have to Congress revise its definition of hemp and explain which cannabinoid merchandise are excluded from the definition of marijuana beneath the Managed Components Act (CSA)?
In July, Kentucky U.S. Sens. Rand Paul and Mitch McConnell, each Republicans, squared off in this query, disagreeing over a trail ahead for consumable hemp merchandise.
Particularly, McConnell sought after to glue language to an agricultural spending invoice that will have made hemp-derived merchandise containing man made compounds and/or quantifiable quantities of THC or THCA—or different cannabinoids that experience identical results on people or animals—unlawful. However Paul prevailed in disposing of that attachment.
Identical proposals have been presented ultimate Congress as lawmakers tried—however in the long run not on time—to go a farm invoice reauthorization package deal that incorporated an modification to redefine hemp.
“Such an modification would believe all THC for the needs of legally figuring out what’s hemp and what’s marijuana,” Kafka wrote. “This alteration would deliver sure THC merchandise again beneath the CSA and DEA law which might be these days thought to be to be hemp or are in an unsure space of law.”
2.) Will have to Congress believe different amendments to the definition of hemp to undertake the DEA’s interpretation that “synthetically derived” THC stays a Agenda I managed substance?
“The use of the time period ‘synthetically derived’ might lift new questions as to what Congress way through man made, except it have been obviously outlined,” Kafka wrote. “How it could be outlined would impact which merchandise can be regulated through the CSA. Congress may additionally permit company and judicial interpretations to play out with out congressional intervention.”
3.) Will have to Congress believe amending the specific preemption provision to elucidate which state rules are preempted?
This query comes as criminal demanding situations to New Jersey legislation and Wyoming legislation associated with restrictions for sure THC merchandise stay pending within the U.S. Courts of Appeals for the 3rd and 10th circuits, Kafka identified.
“To the level Congress seeks to permit states to prohibit sure hemp merchandise completely, Congress may explain that states might control the ownership, use or sale of hemp extra stringently than the farm invoice does; these days, the financial savings clause provision refers most effective to the manufacturing of hemp,” she wrote. “To the level Congress would like to restrict the states’ energy to prohibit those ingredients, Congress may explain the rules it seeks to preempt.”
4.) Will have to Congress believe marijuana’s standing beneath the CSA, which might impact how cannabinoid merchandise that don’t seem to be deemed to be hemp can be regulated?
Each Congress and the manager department, in the course of the Division of Justice/DEA, have the authority to time table, reschedule or deschedule ingredients beneath the CSA.
“DEA is these days taking into account whether or not to reschedule marijuana from Agenda I to Agenda III by the use of formal rulemaking,” Kafka wrote. “Law used to be offered within the 118th Congress that will have got rid of marijuana from law beneath the CSA.”
