Congress Accidentally Legalized Weed Six Years Ago

Drive through Durham, North Carolina, where I live, and you might get the impression that marijuana is legal here. Retail windows advertise THC in glittery letters and neon glass, and seven-pointed leaves adorn storefronts and roadside sandwich boards. The newest business near my house is the Stay Lit Smoke Shop, where an alien ripping a bong invites you to use the drive-through.

In fact, neither medical nor recreational marijuana is legal in North Carolina. Technically, we’re getting high on hemp.

This is probably not what Congress had in mind when it passed the Agricultural Improvement Act of 2018, commonly called the 2018 Farm Bill, which made the production of hemp—cannabis’s traditionally nonpsychoactive cousin—legal for the first time in nearly a century. Lawmakers who backed hemp legalization expected the plant to be used for textiles and nonintoxicating supplements, such as CBD oil and shelled hemp seeds (great on an acai bowl). They didn’t realize that, with some chemistry and creativity, hemp can get you just as high as the dankest marijuana plant.

The upshot is that although recreational marijuana use is allowed in only 24 states and Washington, D.C., people anywhere in the U.S. can get intoxicated on hemp-derived THC without breaking federal law. These hemp-based highs are every bit as potent as those derived from the marijuana available in legalization states. I know this because I’ve tried recreational pot in California and Colorado, as well as 11 different hemp-derived intoxicants legally available here in North Carolina. I am not exaggerating when I say that they are indistinguishable in effect. In other words, six years ago, Congress inadvertently legalized weed across the entire United States.

To understand how that happened, we need to review some basic botany. Hemp and marijuana are varieties of the same plant species, Cannabis sativa. The chemical compounds unique to Cannabis sativa are called cannabinoids. Scientists have identified about 100 naturally occurring cannabinoids, which fall into two broad categories: those that get you high and those that do not. Marijuana (also referred to, somewhat confusingly, as cannabis) is defined by its high content of delta-9 THC, a cannabinoid that gets you high. Hemp contains very little delta-9 THC but can contain a large amount of cannabidiol, or CBD, a cannabinoid that does not get you high.

Congress effectively banned both plant varieties in 1937 with the passage of the Marihuana Tax Act, which erected an impossible set of regulatory standards for buying and selling any type of Cannabis sativa and imposed stiff criminal penalties for noncompliance. When the Supreme Court overturned that law in 1969, Congress responded with the Controlled Substances Act of 1970, which explicitly outlawed both hemp and marijuana, along with a host of other drugs.    

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The push to legalize hemp emerged in the 1980s, thanks mainly to a cannabis enthusiast and head-shop owner named Jack Herer. Herer claimed that the federal government had targeted hemp because its textile applications threatened politically connected magnates, including members of the du Pont family, whose company developed nylon, and William Randolph Hearst, who Herer alleged had been heavily invested in the timber industry, which produced his newspaper stock. Herer, who published a book with these allegations in 1985 titled The Emperor Wears No Clothes, insisted that hemp could replace plastic and timber in many applications for less money and without harming the environment.

Herer’s book laid out the basic strategy for hemp advocacy. Instead of arguing for personal freedom, hemp supporters would focus on eco-friendly textiles, the nutritional value of hemp seeds, and, beginning in the early 2010s, CBD oil’s anti-epileptic and anti-anxiety properties.

Herer died in 2010, but the movement he started achieved its victory with the 2018 Farm Bill, which legalized industrial hemp production. Donald Trump’s signature on that bill was like the shot from a starter gun. The previous year, under a small pilot program, American growers had planted 25,713 acres of hemp, according to a crop report from the advocacy group Vote Hemp. After the Farm Bill, the group reported more than 200,000 acres of hemp planted. Most of that crop was destined to be distilled into CBD. With varying degrees of supporting evidence, producers marketed CBD as an organic supplement for anxiety, sleep, and joint pain. The compound picked up celebrity endorsements and made its way into balms and dog treats.

CBD was seemingly everywhere—but it wasn’t everywhere enough for the hemp industry, which was after big-brand synergy. The real money would arrive when processed-food conglomerates began adding it to ingredient lists. Hemp entrepreneurs dreamed of Walmart aisles stocked with CBD-infused Red Bull cans.

It didn’t happen. Big brands and retail chains wouldn’t invest in CBD without FDA approval, and the agency had declared, shortly after the Farm Bill signing, that it couldn’t regulate CBD as a supplement or food additive, because it was being used as the active ingredient in a new drug application. By late 2019, it had become clear that the FDA wouldn’t budge from its position, and hemp prices cratered. That’s the industry’s explanation, anyway. Another possibility is that growers oversaturated the market with a product that consumers eventually realized didn’t have much effect. Either way, the CBD boom had gone bust, and hemp became a buyer’s market for anyone who could find another use for biomass and distilled oils. One possible market was hinted at in the Farm Bill itself.

The 2018 Farm Bill defines hemp as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” Translation: As long as your plant, and whatever you make with it, contains less than 0.3 percent delta-9 THC, you can do what you want. Given that marijuana plants typically run closer to 15 percent THC by dry weight, a 0.3 percent cutoff seemed logical on its face—akin to the .05 percent alcohol threshold for nonalcoholic beer.

But Congress was not up on its cannabinoid research. In March 2002, the famed Israeli chemist Raphael Mechoulam, who first synthesized and identified THC in the 1960s, had filed a patent application with two colleagues for converting CBD oil into delta-9 THC—and a lesser-known but similarly intoxicating cannabinoid called delta-8. That breakthrough was purely academic at the time, given that deriving THC from hemp was just as illegal as growing marijuana, only more complicated. However, after the 2018 Farm Bill and the late-2019 collapse of the CBD market, it took on enormous practical implications.  

[Read: America loves its unregulated wellness chemicals]

According to the plain text of the Farm Bill, it appeared to be legal to convert CBD into delta-8 THC so long as the process started with a plant that contained less than 0.3 percent delta-9 THC—an interpretation that was eventually endorsed in a ruling by the Ninth Circuit Court of Appeals. It’s unclear who first noticed that loophole, but delta-8 began appearing in news headlines in 2020. Once word got out, the industry response was enthusiastic.

“We got so many calls from farmer after farmer saying, ‘I have so much crop just waiting to be sold,’” Chris Karazin, the founder of Carolindica, a Raleigh-based dispensary, told me. “There was an amazing opportunity for all these extractors. Everyone was just trying to dump stock.”

As a state-approved hemp processor, Carolindica doesn’t synthesize cannabinoids; instead, it turns cannabinoids into products: edibles, tinctures, and even pre-rolled hemp joints, smokable just like old-school marijuana. The company ships to all 50 states and accepts all major credit cards.

The arrival of players like Karazin forced a reckoning in the hemp world. “For 25 years, we wore shirts that said rope not dope,” Jody McGinness, the executive director of the Hemp Industries Association, told me last year. “But out of left field, these products emerged, because the market is a force of nature.”

Hemp-based intoxicants aren’t limited to delta-8 THC. The Farm Bill also appears to authorize  the creation of hemp-based delta-9 THC products as long as the total delta-9 content is 0.3 percent or less of the product’s dry weight. This turns out to be easy to do. Carolindica, for instance, sells a 10-gram gummy that contains 30 milligrams of hemp-derived delta-9 THC, which is exactly 0.3 percent of the gummy’s total weight. The Florida-based company Crispy Blunts sells a cookie that weighs 22 grams and contains 50 milligrams of delta-9 THC. At 0.23 percent by weight, that’s well under the Farm Bill’s threshold, but the total THC content is five to 10 times as high as the legal per-serving limit in many of the states that have legalized recreational-marijuana edibles.

Estimates for the size of the hemp-derived cannabinoid industry are in the billions of dollars. Hemp-derived intoxicants are available at vape shops and gas stations. (The last time I visited my favorite local shop, I was one of two customers. The other was a cop in uniform buying hemp vape pens.) Craft-beer shops in North Carolina sell sodas infused with hemp-derived THC. States in which recreational marijuana is legal have imposed various regulatory limits on its sale.  Not so with hemp-derived cannabinoids. According to a report from CBD Oracle, 17 states nominally banned hemp products as of 2023, but no one can stop deliveries from out-of-state producers, and state-level restrictions are likely preempted by the federal Farm Bill. Judges have blocked such bans from going into effect in Maryland, Arkansas, and Texas.

The seeming overnight ubiquity of hemp intoxicants is a source of anxiety for the marijuana industry. If two companies are selling essentially the same product, and one is limited to in-person cash sales of highly taxed products at tightly zoned physical locations, while the other can advertise on Instagram, access the financial system, and ship to all 50 states, which company will still be around in five years? “[Marijuana] guys think this isn’t fair,” Karazin told me. “We don’t have to pay 16 percent excise taxes. We can use banks, we can accept credit cards, and we’re federally legal.”

The situation has spurred marijuana lobbyists to ask for parity in hemp and marijuana regulations, starting with a cap on the strength of hemp-derived intoxicants. The Cannabis Regulators Association has also asked Congress to establish that states can choose to restrict hemp within their borders.

Beyond the self-interested concerns of the marijuana industry, some experts warn that the chemical process of creating hemp-based cannabinoids could be dangerous—as could the new cannabinoids themselves. Humans have been smoking high doses of delta-9 THC for a long time. Not so with delta-8, to say nothing of the even more exotic hemp derivatives being developed.

These issues have brought together some truly strange bedfellows. In March, a group of 21 state attorneys general, including the progressive Rob Bonta of California and the Trumpist Kris Kobach of Kansas, wrote a joint letter demanding that Congress amend the definition of hemp to  “clarify that there is no federal hemp intoxicants loophole.” Accordingly, in May, the House Agriculture Committee adopted an amendment for the next Farm Bill banning hemp-based cannabinoids. Whether that makes it into the final bill is an open question. The amendment drew the ire of not just the hemp industry but also the Wine and Spirits Wholesalers of America, which has joined the marijuana industry in calling for the regulation, but not prohibition, of hemp-derived intoxicants.

[Read: Almost no one is happy with legal weed]

Perhaps the best evidence of how the fight will play out comes from legislative battles at the state level. In early June, Florida Governor Ron DeSantis launched a political-action committee to fight a state ballot initiative that would legalize recreational marijuana. The very same week, he vetoed a bill that would have restricted hemp cannabinoids in the state.

Industries this large can be corralled by regulation, but they’re tough to destroy. By the time Florida’s anti-delta-8 bill came across DeSantis’s desk, he had probably noticed the billboards begging him not to eliminate 100,000 jobs in the state. The high-on-hemp business, in other words, may already be too big to ban.