WASHINGTON – After a stunning defeat in Congress last month, the makers of hemp-derived drinks, gummies and other products are preparing to combat a ban on the popular intoxicating edible that will go into effect next year.
Since Congress approved a federal ban on all intoxicating hemp-derived products in the bill that ended the federal shutdown last month, a reeling industry is hoping its friends on Capitol Hill will succeed in an effort to convince lawmakers to impose federal regulations on their products, instead of outlawing them.
Several bills have already been introduced or are in the works.
Rep. Nancy Mace, R-S.C., has introduced a bill that would overturn the new law that outlaws all hemp products that contain more than 0.4 milligrams of THC or any other psychoactive substance. Under the new law, nearly all hemp-derived consumable products, including many CBD products, would be illegal under federal law.
But that approach has failed before.
During Senate debate on the budget bill, Sen. Rand Paul, R-Ky., tried to strip out the hemp provision. But his amendment was killed on a 76-24 vote.
Related: It’s not just THC gummies and drinks – CBD products on federal hit list, too
Paul says that vote showed there is no support to keep intoxicating hemp products legal and free of all federal regulations, which was the result of the removal of hemp from the federal controlled substances list by the 2018 farm bill.
So, Paul is considering a bill that makes it clear that states like Minnesota that have their own regulations on hemp-based intoxicating products can continue to manufacture and sell them until a new law is approved and federal regulations on those products could be put in place.
The makers of hemp-derived THC edibles say “bad actors” that use synthetic THC to boost the intoxicating effects of edibles that can be purchased online by minors are the problem, not the responsible companies that follow state laws. They say they welcome federal regulations if they can stay in business.
And what are the regulations the makers of THC-infused drinks and other edibles are seeking?
Sens. Ron Wyden and Jeff Merkley, two Democrats from Oregon – a state with a robust hemp industry – laid them out in a bill they introduced last week.
The senators’ bill would set THC limits on hemp products for states that do not enact their own caps, allowing up to 5 mg per serving and a maximum of 50 mg per container for gummies and other products besides beverages.
Those beverages could have up to 10 mg of THC – the same limit imposed by Minnesota – under the federal standard.
The legislation would also task the Food and Drug Administration (FDA) with testing hemp-based products for potency and dangerous additives and ensuring products aren’t marketed to children.
The THC drink industry has rallied around the legislation.
“Hemp beverages are incredibly popular with adult consumers who are seeking additional beverage choices. This legislation allows them to continue to enjoy these beverages while creating a safe, transparent and thriving category,” said Hemp Beverage Alliance President Christopher Lackner.
The “Cannabinoid Safety and Regulation Act” would also create a new $125 million underage cannabis use prevention grant program through the Department of Health and Human Services to prevent young people from using cannabis and cannabinoid products and also establish a $200 million state cannabis-impaired driving prevention grant program and a nationwide anti-drugged driving campaign.
The bill would also prohibit any packaging or labeling that could appeal to children, like cartoons and anthropomorphic figures, or producing edibles that look like candy. It would also ensure that the FDA could recall products when necessary.
Wyden said that absent significant regulation from the FDA in the years since the farm bill opened the door to hemp-derived cannabinoid products, many are untested, falsely labeled, contain dangerous chemicals and are marketed to children.
While Minnesota and other states have regulated these products, others don’t. That, Wyden said, leaves consumers to wade through inconsistencies between marijuana and hemp products across various markets.
No panicking or pivoting
It may be difficult for Oregon’s Democratic senators to have a vote on their legislation in a GOP-led Senate. So, there’s talk of trying to include it in another “must pass” spending bill, this time another short-term budget bill that would prevent another federal government shutdown on Jan. 31.
There’s another effort in the U.S. House that the hemp industry likes. Virginia Rep. Morgan Griffith, R-Va., is also drafting a bill that would impose regulations on THC-infused products.
Like the Wyden-Merkely bill, Griffith’s legislation would set limits on THC and restrictions on packaging and marketing. It would also put the FDA in charge of regulating the industry.
Griffith is also considering a ban on adding substances, such as alcohol and caffeine, to any THC-containing edible product that could interact with cannabinoids or enhance or alter their effects.
It’s still early in the process. But a manufacturer of hemp products in Minnesota suspects that lawmakers will roll back the proposed restrictions on the industry in response to business and consumer pushback.
“I think they’ll adjust it,” said Leili Fatehi, owner of hemp supplier Crested River in Morgan. “Now, what that will look like is an open question.”
Fatehi said lawmakers voted to criminalize hemp-based intoxicating products as a way to abolish those with extremely high THC contents.
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But she said that in Minnesota, adoption of robust hemp regulations in 2022 already did that without banning lower-potency hemp products.
To Fatehi, moving hemp into the same category under federal law as marijuana would place challenges that she thought were relics of the past on businesses.
Shipping across state lines would become an issue, she said. Banking, loans and insurance wouldn’t be as easy to secure.
Crested River, launched in 2018, began making low-potency THC
beverages and edibles after Minnesota’s legalization in 2022. Its products are in stores around the country. The company’s national distribution could be in jeopardy under the law change, Fatehi said.
“The concern becomes (that) if the federal law takes effect in a year,
can we continue? Chances are, no,” she said.
Yet from what she’s heard, hemp businesses aren’t yet panicking or pivoting. Everyone seems optimistic that changes will be made before the law’s one-year grace period ends, Fatehi said.
Lackner also said he hoped “cooler heads will prevail” in Congress.
A level playing field
Minnesota lawmakers, including Democratic Sens. Amy Klobuchar and Tina Smith and Rep. Ilhan Omar, D-5th District, are strong supporters of the state’s hemp industry and support efforts to establish a regulatory framework instead of a federal ban.
At a press conference last month, Klobuchar said hemp products brought in $16 million in state revenue through September. She also said the criminalization of those products could cost Minnesota 2,700 jobs.
Katy Mutschler, Hemp Program Coordinator at the Minnesota Department of Agriculture, said hemp cultivation in the state has grown since the 2018 farm bill made hemp legal.
Mutschler said there are nearly 2,500 acres under hemp cultivation in the state. Sixty-two growers have state licenses to grow hemp, and some are growing it for agricultural purposes — to make fiber from the plant’s long stems that is used in paper, cloth and animal feed — Mutscher said, while others are growing flower-heavy plants used to make intoxicating edibles.
The ban on production of intoxicating hemp products has a carve-out for those who grow hemp for industrial use. But it will impact an industry of hemp-based THC products that has boomed in Minnesota.
Yet Minnesota’s lawmakers face an uphill climb in their efforts to save that home-state industry.
The hemp industry has been out-lobbied by the nation’s increasingly influential marijuana industry, which considered the hemp industry to be a competitor that was allowed to lawfully produce and sell its products — even across state lines — while pot is still illegal under federal law.
Related: Beer industry joins renewed push for feds to rein in THC-infused drinks, threatening lucrative Minnesota industry
Chris Lindsey, a lobbyist for the American Trade Association for Cannabis & Hemp (ATACH,) said the marijuana industry merely wants a level playing field for all cannabinoids.
Lindsey also said it will be difficult for lawmakers – from both parties – to vote for legislation that would keep hemp-based THC drinks and other edibles legal.
“Congress is not there,” he said. “(Lawmakers) are not going to embrace these products.”
Wyden introduced a similar bill aimed at preventing a ban on hemp-derived THC edibles in the last Congress, but it died in committee.
There’s the issue of high-level THC products, sometimes contaminated with heavy metals and other harmful substances, for sale at gas stations and convenience stores. And the accidental THC ingestion in children is a growing concern in Minnesota and across the nation, with pediatric emergency rooms reporting an increase in such poisonings.
The nation’s alcohol industry, which also saw a growing competitor in THC infused drinks, joined the marijuana industry in lobbying to ban hemp products.The beer, wine and liquor industry gave more than $12 million in campaign donations to members of Congress last year and has always been influential on Capitol Hill.
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