Cannabis is in a weird spot. The majority of states have legalized marijuana in some form, but the plant remains a Schedule I narcotic in the eyes of the federal government. And while the community waits with bated breath to see if the DEA will reschedule or de-schedule cannabis, hoping a move equates to federal legalization, some are arguing that weed is actually already legal nationwide.
The 2018 Farm Bill legalized hemp nationwide, provided it contains no more than 0.3 percent THC. The move led to a massive CBD boom across the country and an uptick in hemp production. But six years later, there have been some unlikely developments in the story.
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According to some analysts, the Farm Bill has inadvertently created a legal cannabis market nationwide. From delta-8 to THC-A, people are indeed consuming intoxicating cannabinoids that meet the federal definition of hemp. Some argue that loopholes and hazy interpretations are the cause—with vocabulary often being front and center.
“Under federal law and the laws of most states, ‘cannabis’ is not a legal term of art. It is simply a botanical term,” explained attorney Rod Kight, who has become a leading figure in cannabis law. “The legal terms are ‘hemp’ and ‘marijuana.’ ‘Hemp’ is completely descheduled. The terminology is actually very important for addressing legal and policy issues.”
Regardless of why or how, the current cannabis landscape is indeed intriguing. But has the Farm Bill opened the flood gates for legal weed nationwide?
Hemp-derived highs
Not long after the Farm Bill passed, cunning entrepreneurs realized there was more to hemp than just CBD. People began converting the cannabinoid into intoxicating compounds using chemical processes, including delta-8-THC, THC-O, and HHC. These psychoactive substances quickly became popular in prohibition states, offering an easy to obtain and legal buzz. A number of states have outlawed these compounds, but the vast majority have allowed sales to continue.
Hemp-derived delta-9-THC also began to gain traction after the 2018 Farm Bill. Molecularly identical to the THC found in regulated cannabis products, hemp-derived delta-9 is extracted from hemp or converted from CBD like delta-8. Hemp D9 drinks, edibles, and even vapes have flooded the market and can be ordered from a wide variety of online retailers.
Then came the THC-A flower. THC-A is the precursor to THC and is found in raw cannabis flower. Once heated, it converts to THC and gets people high. All cannabis you buy at a legal dispensary is technically THC-A flower. Thanks to a perceived legal loophole, this bud can also be purchased online and in many states lacking a regulated marijuana market—again, according to the Farm Bill.
The Farm Bill states that in order for hemp to be in compliance, it must contain less than 0.3% THC. Pre-harvest tests on young plants confirm whether the hemp can be processed and sold. Some legal experts argue that since the law calls out THC and not THC-A, these products are fair game. This has led to THC-A flower (aka weed) being legally sold as hemp in several states and online.
Hemp, marijuana – is there really a difference?
Hemp is lawful on the federal level and most consumers can obtain intoxicating cannabinoids derived from hemp. Does that mean that weed is basically already legal nationwide?
According to Kight, the hemp space has created a path to federal marijuana legalization—whether it was intended or not.
“Certainly, in my law practice, we’re getting lots of marijuana operators who are expanding into hemp,” Kight said. “I believe that the marijuana markets are dying due to overregulation but that the ‘hemp lane,’ which is rapidly expanding, provides a path forward for full descheduling since hemp is already descheduled.”
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Indeed, competition from the hemp market has given some cannabis operators cause for concern, with many deciding to change teams. In a recent LinkedIn post, former TSumo Snacks CEO Caroline Yeh announced the beloved edibles brand was shutting down in California, adding that she was seeking a fresh start in the hemp-derived D9 space—seemingly the only growth market in the broader cannabis industry.
“Almost every single product that is available in the ‘marijuana’ market is also available—and federally lawful—in the ‘hemp’ market, from flower to edibles, etc.,” Kight told GreenState. “In fact, the hemp market has more options since it is more decentralized, has more operators, and its revenues exceed that of the regulated marijuana markets.”
While the cannabis community waits to see if both hemp and marijuana will soon be federally legal, the argument that the two are one in the same continues to ring out. The DEA is currently reviewing a potential rescheduling of cannabis and the Farm Bill is set to be renewed this year meaning there could be big changes coming soon.
Until then, the odd gray area of hemp and marijuana continues to confound and confuse. Could it all be semantics? Sure. But the distinction has never been less defined.
