[co-author: Stephanie Kozol]*
The Agriculture Improvement Act of 2018 (the 2018 Farm Bill) legalized industrial hemp for commercial use to support American farmers and create a regulated industrial hemp market. The 2018 Farm Bill defined “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 [THC] concentration of not more than 0.3 percent on a dry weight basis.” The 2018 Farm Bill also removed hemp from the definition of “marihuana” under the Controlled Substances Act. Since 2018, many in the hemp industry have relied on language in the 2018 Farm Bill’s definition of “hemp” (sometimes referred to as the 2018 Farm Bill loophole) to take the position that it authorizes the production and sale of intoxicating, hemp-derived THC products (e.g., beverages, gummies, candies, etc.) that are derived from cannabis plants containing less than 0.3% delta-9 THC on a dry-weight basis. On October 24, the National Association of Attorneys General (NAAG) sent a letter to congressional committee chairs, signed by 39 state and U.S. territory attorneys general (AGs), urging immediate legislative action to close the loophole.
The letter highlights the rapid proliferation of intoxicating, hemp-derived THC products nationwide, and emphasizes the severe public health and safety risks such products allegedly pose to the public, particularly to children. The letter argues that these types of products are being sold nationwide without consistent age restrictions, labeling standards, or safety requirements and are frequently packaged as consumable foods that are designed to appeal to young children. For example, the letter cites data from Indiana Poison Center demonstrating a dramatic increase in pediatric exposures to cannabinoids and their analogs, with incidents involving “minor cannabinoids” (e.g., delta-8 and delta-10 THC) rising by 2,482% between 2022 and 2025.
The letter also argues that state-level bans and regulations are insufficient to address the problem, as these products continue to flow through interstate commerce. The letter calls on Congress to clarify the federal definition of hemp — either through its fiscal year 2026 appropriations process or 2018 Farm Bill reauthorization — to ensure that intoxicating, hemp-derived THC products are unequivocally illegal, and their sale and manufacture are criminal acts. The letter stresses that such clarification would not impede the cultivation of industrial hemp for legitimate agricultural and commercial uses, as hemp itself does not contain intoxicating levels of THC. Additionally, the letter notes the need for consistency with the federal Food, Drug, and Cosmetic Act, under which it states that THC-infused foods and beverages are unlawful.
Why It Matters
As we discussed in a July 18 blog post, states have taken varied approaches to addressing intoxicating, hemp-derived products. Amid federal inaction and varying state approaches, as we discussed in our July 22 blog post, there has been a growing, bipartisan push for Congress to take legislative action on this issue. The letter is another example of that bipartisan effort. If Congress decides to close the 2018 Farm Bill loophole by, for example, effectively banning the sale of intoxicating, hemp-derived products, it will have a monumental impact on the current hemp industry and likely preempt laws in several states that allow, but regulate, the sale of such products.
*Senior Government Relations Manager
