Some "Hemp" Became Marijuana Today Under Federal Law. The Full Ban Hits December 11th

Well, today is the day. Or one of them. A new, more restrictive definition of hemp officially became the law of the land.

Pursuant to H.R. 5371, “intermediate and final hemp products” which “are not capable of being naturally produced” by a cannabis plant are now defined as marijuana under the federal CSA. Another way to say this is that synthetic cannabinoids are no longer hemp by any stretch of the word, effective November 12^th.

The other shoe drops on December 11^th unless Congress intervenes. At that point, much more of what is now purportedly “hemp” will once again become “marijuana” in no uncertain terms. Specifically, the following items will also be expressly defined as marijuana under federal law, come December 11^th:

viable seeds from a cannabis plant that exceed a total THC concentration, including THCA, of 0.3% on a dry weight basis;
any hemp-derived cannabinoid products (whether intermediate or final) that contain cannabinoids that "are capable of being naturally produced" but were "synthesized or manufactured outside the plant";
intermediate hemp-derived cannabinoid products (products either not in their final form or products marketed to be added to or mixed with another substance prior to use) that contain more than 0.3% combined total THC and other cannabinoids with similar effects; and
final hemp-derived cannabinoid products that contain greater than 0.4 milligrams combined total per container (i.e., the innermost packaging in direct contact with a final hemp-derived cannabinoid product for retail sale) of total THC and other cannabinoids with similar effects.

The staggered implementation of these new definitions came about in September, when Congress passed a continuing appropriations bill. Sellers of reputed hemp products, from gas station weed to cannabis seeds, succeeded in winning a one-month extension as to the bullet points above. The Congressional Research Service has a useful report outlining all of this and more.

Funding for the entire federal government lapses on December 11^th, the day the “full ban” on intoxicating hemp products and most seed sales is set to take effect. In theory, our lame-duck Congress should pass another spending bill before then. Whether industry advocates will succeed in wedging another delay (or other relief) into a forthcoming spending bill is an open question.

If we don't see action on this before December 11^th, seeds from high THC plants along with most finished “hemp” products currently on the market will not survive H.R. 5371. As I explained a year ago when H.R. 5371 passed, "this is because most of these products contain more than 0.3% delta-9 THC or THCA, or some combination thereof, and are designed to get you high."

This space is moving very fast, both as a matter of law—including at the state level in some cases—and in respect of the marketplace. We will continue to update as things evolve in the next 30 days.

For more on this topic, including thoughts on everything from state markets to the likelihood of enforcement, check out the following posts: