Last week, High Times broke down how Congress ended the longest government shutdown in U.S. history and, in the process, scheduled the recriminalization of most hemp-derived products. The deal President Donald Trump signed caps legal hemp at 0.4 milligrams of total THC per container, bans synthetic or chemically converted cannabinoids and gives the industry one year before most hemp products (including drinks, gummies and vapes) are treated as Schedule I marijuana.
On paper, the ban is national and absolute. In reality, it’s already turning into a state-by-state fight over who actually controls cannabis policy.
Paper Law vs. Real-World Enforcement
Technically, cannabis has been federally illegal the whole time, yet a $32 billion marijuana industry operates in dozens of states. Now, a $28.3 billion hemp sector is being shoved into the same contradiction.
Law professor Jonathan Adler told MJBizDaily: “While marijuana is illegal for purposes of federal law, the federal government doesn’t have the resources, doesn’t have the personnel to go after individual retailers, individual buyers, let alone individual users.” If that is true for state-licensed cannabis, it is even more true for hemp seltzers in grocery stores.
In Ohio, for instance, this tension is already out in the open. Governor Mike DeWine issued an executive order to ban hemp-derived THC at the state level, but a judge put the order on hold. Now, lawmakers are talking about pulling hemp THC into the state’s cannabis regime instead of treating it as pure contraband. According to ABC-5, House Speaker Matt Huffman, who supports stricter rules, still asked: “Now, are we going to go around and start cuffing 17-year-old clerks at gas stations? No, but we’ve got to get this thing in shape.”
Texas and Kentucky Push Back
Texas now sits in direct conflict with the new federal definition. Economist Robin Goldstein writes in the Houston Chronicle that the state’s “THC hemp business” represents “a $4.5 billion industry that supports thousands of businesses, most of them small and independent.” He credits Governor Greg Abbott with taking “courageous action to save Texas hemp” by vetoing a state ban and issuing an executive order that kept intoxicating hemp products legal under HB 1325.
Under Abbott’s order and HB 1325, Goldstein notes: “THC hemp products have already been explicitly legalized under Texas law.” Now the shutdown deal makes those products illegal again at the federal level, but state law “is therefore now in conflict with U.S. federal law.” In his words, “recreational intoxicating hemp is just as legal in Texas as recreational intoxicating cannabis is in California,” and “Texas and its THC industry simply join the conflicts-with-federal law club.” His bottom line: “I see no more reason that THC hemp businesses should stop operating in Texas than that THC cannabis businesses should stop operating in California.”
In Kentucky, the governor is sending a similar signal, albeit in softer tones. When asked about the federal hemp language, Governor Andy Beshear said at a press briefing that “hemp is an important industry in Kentucky,” and that “we should have appropriate safety regulations around it, but we should make those regulations here in Kentucky —talking to the industry and making sure that we get that balance right.”
The Governor added: “I think that we can protect our kids. I think that we can do the right thing to protect all of our people while not handicapping an industry that supports a lot of people.” Meanwhile, Senator Rand Paul tried to strip the hemp ban from the bill and warned leadership it would devastate the hemp sector, while Senator Mitch McConnell, who pushed hemp legalization in 2018, led the effort to close the so-called loophole.
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