A last-minute provision included in the Congressional spending bill to end the longest government shutdown in history will effectively ban nearly all hemp-derived products on the market.

The new ban overrides Congress’ 2018 Farm Bill, legislation that permitted companies to produce hemp products that contained less than 0.3% delta-9 THC. The 2018 Farm Bill contained what critics called a loophole, which allowed hemp producers to manufacture hemp products that still contained intoxicating amounts of Delta-9 THC, along with Delta-8 THC, since it banned THC concentrations by weight, with the cap at 0.3%. The ban gave FDA 90 days to create a list of synthetic hemp-derived substances, and to define “container” as it applies to this law.

The new provision bans products from sale if they contain more than 0.4 mg of THC within the entire container, along with synthetic versions of hemp compounds, thereby preventing “the unregulated sale of intoxicating hemp-based or hemp-derived products, including Delta-8, from being sold online, in gas stations, and corner stores, while preserving non-intoxicating CBD and industrial hemp products.”

While the inclusion of hemp in foods, beverages, and other products varies in legality on a state-by-state basis, this new THC cap bans the overwhelming majority of hemp products on a federal level.

Regulate, Don’t Ban

The new ban impacts an estimated 95% of hemp products currently on the market, according to the U.S. Hemp Roundtable, a coalition of dozens of hemp and CBD companies and organizations.

With the ban not going into effect for 365 days, the organization noted that it will work with Rep. Morgan Griffith (R-VA) to introduce a bill that would replace a total ban on affected products with several regulations to establish good manufacturing practices, labeling rules, bans on synthetic THC, and measures to keep products from the hands of children. In the Senate, Sens. Ron Wyden (D-OR) and Jeff Merkley (D-OR) are expected to reintroduce a similar regulatory bill soon, for consideration by the Senate Health, Education, Labor, and Pensions (HELP) Committee.

While some in Congress were assured that the ban would crack down on the fully synthetic, high-THC products that get marketed to children, a prohibition of this magnitude would effectively shift these products to black markets. “Many Senators were scared by claims that this hemp debate would lead to a longer and more painful government shutdown, forcing some advocates to vote against hemp to hurry the government’s opening,” U.S. Hemp Roundtable reported.

“Businesses are deeply disappointed by the decisions of Congress and their openness to receiving false information so easily,” said Art Massolo, president of the U.S. Hemp Roundtable and VP of business development at Cycling Frog. “The next year will be critical in determining the future of hemp. As a significant American industry, we are committed to sharing with Congress the real story about hemp. Because the truth is that good actors in the industry have created a self-regulation authority to protect consumers. But we need Congress’ help to keep the bad actors out. Hemp is here to stay, let’s do it right.”

“Time and time again, American farmers have proven to be resilient, and hemp is no different,” said Ken Meyer, co-owner of Complete Hemp Processing and co-chair of U.S. Hemp Roundtable’s farmer advisory council. “The 2018 Farm Bill gave us a chance to embrace innovation and invest in a profitable crop. Our focus now is education of Congress and building a path that secures hemp for the future generations and keeps farmers in business.”

“The U.S. Hemp Roundtable is eager for the year ahead and the opportunity to right the course for the industry,” said Jonathan Miller, general counsel for the U.S. Hemp Roundtable. “The support of Senator Paul has afforded our industry the opportunity to ensure our products are around for the seniors that struggle with pain or the veterans that battle anxiety and PTSD. We are grateful for leaders that understand the true value of hemp and who will continue to advocate for responsible regulations that protect consumers and a uniquely American industry.”