Seven years after he backed a provision that effectively legalized hemp, GOP Sen. Mitch McConnell of Kentucky is now pushing to close a so-called "loophole" of that same bill — a move that critics fear could devastate the hemp industry.
The U.S. Senate Appropriations Committee advanced an agriculture spending bill Thursday that included McConnell's provision to alter a 2018 bill that allowed hemp with low amounts of THC, the psychoactive component in cannabis plants. A House committee passed a spending bill in June with a similar provision, which would ban consumable products with "quantifiable" amounts of THC.
A notable change to the Senate version of the bill would delay the implementation of the ban for one year, potentially giving the hemp industry more time to advance regulatory alternatives in Congress.
While supporters of closing the hemp loophole say it is needed to stem the tide of "intoxicating" hemp-derived products containing synthetic THC, those in the industry have said it could effectively ban even non-intoxicating CBD products derived from hemp — closing businesses, hurting farmers and crippling a multi-billion dollar industry.
Addressing this portion of the current bill Thursday in committee, McConnell said his provision in the 2018 farm bill had "an unintended consequence" that allowed for intoxicating hemp-derived synthetic products to flood the market in the following years with no federal regulatory structure.
McConnell said the new bill "takes us back to the original intent of the 2018 farm bill and closes this loophole," preventing "the sale of unregulated intoxicating lab-made, hemp-derived substances with no safety framework."
One key difference in this Senate bill from the one that advanced in the House last month is that it delays implementation of the new hemp definition for one year, which McConnell said will "help give our hemp farmers ample time to prepare for their future."
Democratic Sen. Jeff Merkley of Oregon thanked McConnell for the one-year delay of its implementation, but warned that it still contains a significant threat to a hemp industry that farmers, businesses and consumers now rely on.
Merkley said the bill rightly combats those synthetically altering hemp into hallucinogenic products, but "there are other products that come from hemp, such as CBD, that has, in fact, been a significant factor as a health care supplement in many, many products across America that does not have a hallucinogenic effect."
Merkley said he hoped to work with McConnell over the next year to develop "a definition that addresses the hallucinogenic factors but does not eliminate the CBD product that is non-hallucinogenic, that is valued by many Americans."
A spokesperson for McConnell stated in an email that the provision directs the FDA to set a "quantifiable limit" for THC allowed in hemp-derived cannabinoid products, adding that "products such as CBD do not contain THC and would continue to be legal."
The latter claim is strongly disputed by the hemp industry, which argues that common non-intoxicating CBD products have natural traces of THC. Industry leaders previously argued the House version would put CBD products on the chopping block of a ban, along with synthetic intoxicating products.
The House bill was also strongly criticized by Sen. Rand Paul, Kentucky's other GOP senator, who said it would "completely destroy the American hemp industry."
"I don't know how you'd be able to sell CBD oil with that," said Paul, who has long pushed for his own HEMP Act to triple the concentration of THC that hemp crops are allowed to contain.
Paul's spokesperson did not reply to a request for comment on the Senate bill advancing Thursday.
The Kentucky Hemp Association issued a statement last month that the House version would have "a devastating impact on our farmers and small businesses by destroying genetics developed to conform to the definition under the 2018 Farm Bill and recriminalizing hemp products with detectable amounts of THC."
The statement included a quote from Kentucky Agriculture Commissioner Jonathan Shell, who supported removing the "over-broad" House language that would "criminalize non-intoxicating CBD products in our hemp program." The spokesperson did not immediately reply to an email asking his reaction to the Senate bill.
Justin Swanson, a board member of the Kentucky Hemp Association and president of the Midwest Hemp Council, told Kentucky Public Radio that the addition of a one-year delay of implementation in the Senate bill Thursday was "welcome news" for their members.
While still very concerned about the potential for hemp to be redefined, Swanson said a one-year delay "allows us to continue to be at the table, in terms of calling for responsible regulations that protect consumer health, while still making sure farmers have an end use market for their hemp crops."
Swanson said he's unsure if the underlying House or Senate bill will pass, but is also concerned that similar hemp language could get attached to a must-pass bill, like an upcoming continuing resolution to fund the government and keep it running. He's also hopeful that bills in both chambers laying out a regulatory structure for legal hemp may still advance.
"I think everybody wants the same thing," he said. "There's unity in the industry on the four pillar approach, which provides for uniform age restrictions, packaging, labeling and testing requirements."
In the absence of federal regulations, states have been advancing their own regulations on hemp products, in some cases trying to ban all products deemed to be intoxicating. The Texas Legislature passed a bill in June to ban all consumable hemp products containing THC, but it was vetoed by the governor, who instead wants regulations in place.
The Kentucky General Assembly passed a bill this year to ban the sale of all intoxicating hemp beverages with more than five mg of THC per 12 ounce serving, as well as put the industry under the regulation of Alcoholic Beverage Control agencies. The move was heavily criticized by hemp businesses in the state, who argued that it was unjustly targeting a growing industry.
The Wine & Spirits Wholesalers of Kentucky lobbied for the state bill, but is not in favor of the proposals now in Congress to redefine hemp.
"Just as we advocated at the state level, we believe intoxicating hemp products should be treated similarly to alcohol at the federal level to protect the public and small Kentucky businesses," said Charles George, the executive director of the Kentucky wholesalers.
State government and politics reporting is supported in part by the Corporation for Public Broadcasting.
This story was distributed by the Appalachia + Mid-South Newsroom, a collaboration between West Virginia Public Broadcasting, WPLN and WUOT in Tennessee, LPM, WEKU, WKMS and WKU in Kentucky and NPR.
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