Mitch McConnell’s Cannabis Gambit: How The Farm Bill Unwittingly Fueled A THC Boom
This article was originally published on MG Magazine and appears here with permission.
There is no shortage of unintended legislative consequences in the brief history of legal cannabis, but the 2018 Agricultural Improvement Act—popularly known as the Farm Bill—may take the cake. Most notoriously, the bill federally legalized hemp, which the legislation defines as Cannabis sativa L. and “any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers” as long as they contain no more than 0.3 percent tetrahydrocannabinol (THC) by dry weight. All other plants, products, derivatives, et cetera, that fall within the genus Cannabis remain federally prohibited Schedule I substances under the Controlled Substances Act.
Kentucky Republican Mitch McConnell, who was senate majority leader at the time, was one of the biggest champions of the commercial hemp industry and rallied support for the Farm Bill in Congress. “For far too long, the federal government has prevented most farmers from growing hemp,” McConnell said. “I have heard from many Kentucky farmers who agree it’s time to remove the federal hurdles in place and give our state the opportunity to seize its full potential and once again become the national leader for hemp production.”
Little did McConnell (or anyone else in Congress) realize their well-intentioned agricultural reform would lead to the de facto legalization of psychoactive THC in nearly every corner of the United States.
Just a year after the Farm Bill passed, infused gummies, hemp joints, and other cannabis-lite goodies began showing up on the shelves of gas stations, convenience stores, and smoke shops all across the Bible Belt. And until federal agencies step up and start regulating the thousands of gray-market producers of hemp-based intoxicants, it will continue to be the wild west in a market creeping up on the legal industry in product numbers and revenue.
Along the way, there have been plenty of questions: Is this stuff safe to consume? How are delta-8 and delta-10 different from delta-9? What does “naturally derived” mean? And why is this teenage gas station attendant recommending I try the new THCA Super Monkey Berries blunts?
“It is a freight train coming, and whether we talk about cannabis laws, hemp, Farm Bill changes, whatever, the train has left the station, the horse has left the barn, and it’s not going back in,” said Keith Bushfield, chief executive officer at Rexis Biotech, an industrial-scale manufacturer of food and beverage products infused with hemp-based cannabinoids.
Tension In The Ranks
In the wake of the Farm Bill’s passage, farmers in agricultural states in the South and Midwest ramped up hemp production and set up industrial-scale extraction facilities. Soon, a flood of CBD distillate and new CBD products hit the market. The first wave was marketed with dubious health claims, but most products weren’t intoxicating so the Drug Enforcement Administration and the Food and Drug Administration took a laissez-faire approach to regulation.
When delta-8 THC products began showing up on store shelves and websites in 2019, however, a buzz erupted about the newest minor cannabinoid’s ability to produce a (presumably legal) high. Though delta-8 is less potent than delta-9, products containing the substance represented the first opportunity for people in states without legal cannabis to buy psychoactive cannabinoids. Delta-8 also provided an opportune outlet for the glut of CBD distillate that was available after hemp production skyrocketed, and delta-8 products offered higher margins than run-of-the-mill CBD.
Justin Journay, founder and CEO of 3Chi, is one of the pioneers of the delta-8 market. His company employs about 400 people in the Indianapolis area, and it made headlines in 2022 when it became the first hemp sponsor of NASCAR by signing a deal with Richard Childress Racing, Tyler Reddick, and the No. 8 NASCAR Cup Series team. 3Chi’s deal was the first hemp-based consumer brand sponsorship in any major professional sport. In an interview published on the nonprofit website KFF Health News last year, Journay touched on the tension between licensed cannabis brands and the growing gray market for delta-8 and other hemp-derived psychoactive cannabinoids.
“There are risks with THC. There absolutely are. There are risks with cheeseburgers,” Journay said. “The vast majority of negative information out there and the push to make delta-8 illegal is coming from the marijuana industry. It’s cutting into their profit margins, which is funny that the marijuana guys would all of a sudden be for prohibition.”
Cannabis companies can only dream of inking a high-profile sports sponsorship given the plant’s status as a federally prohibited Schedule I drug. So how are hemp companies able to pull off such a coup?
“My take on delta-8 is it’s a way to get high on the hemp side without having to go to dispensaries,” said Chris Denicola, CEO of Wolf Sciences in Colorado, which manufactures white-label products infused with minor cannabinoids such as CBG, CBN, CBC, and CBD. “To me, the Analogue Act should cover delta-8, but for some reason it doesn’t because [delta-8 is] made from hemp and not cannabis, which I think is a weird loophole. I think it screws over dispensaries and growers in legalized states, and it keeps the hemp and cannabis market focused on milligrams and not outcomes.”
Denicola referenced the 1986 Federal Analogue Act (FAA), which allows the federal government to treat any substance that is structurally or pharmacologically “substantially similar” to a Schedule I or Schedule II controlled substance as though it were listed on Schedule I. While federal agencies haven’t taken a definitive stance on hemp-based cannabinoids yet, a growing number of states are banning or attempting to regulate delta-8 and other intoxicating hemp products by incorporating aspects of the FAA into state law.
The minor cannabinoids currently being …