During the Thanksgiving season, it’s important to take stock and give thanks to even the most unlikely of allies. As the co-founder of a hemp company, I couldn’t make gummies with measurable amounts of THC without the hard work of Senate Minority Leader Mitch McConnell. That’s why I’d like to say, “Thank you, Sen. McConnell.”
Many people are surprised to learn that it’s legal for us to ship gummies with THC in them across state lines through the US Postal Service. But it’s totally legal, thanks to Mitch McConnell. How did that happen, exactly?
Kentucky is one of 14 states without medical marijuana, but nearly a decade ago, Kentucky legislators did manage to legalize hemp. Back then, people called it “industrial hemp” because they thought they were legalizing it for fiber and grain. After it passed at the statehouse, Kentucky lawmakers lobbied Sen. McConnell to help legalize “industrial hemp” at the federal level.
For years before that, hemp legalization efforts had been led in the Senate by Sen. Ron Wyden of Oregon. But after Kentucky legalized hemp in 2013, Wyden found a new ally in Mitch McConnell. Together, this unlikely bipartisan pair engineered a path to legalize hemp at the federal level by tucking a one-page hemp pilot program into the 2014 Farm Bill.
The 2014 Farm Bill legalized “industrial hemp” by defining it as a cannabis plant with a delta-9 THC level that did not exceed 0.3 percent by dry weight. That 0.3 percent is next to nothing, especially when a person can buy cannabis flowers in state-legal dispensaries with THC levels above 20 percent.
But while 0.3 percent THC is almost nothing, it’s not zero. In fact, it’s actually something quite significant. No one in 2014 had any idea that McConnell’s hemp pilot program would lead to legal THC gummies. But the sequence of events that got us here happened quite fast.
As soon as the 2014 Farm Bill was signed into law, CBD brands emerged to make CBD oil from hemp. Some of those companies even included a legal amount of THC in their CBD oil, calling it “full spectrum” as a subtle way to advertise its THC content without saying it too loudly.
In 2018, when the Farm Bill was up for reauthorization, the cat was out of the bag. Everyone, including Mitch McConnell, knew that the legalization of hemp meant a legal nationwide cannabinoid market, exemplified by the popularity of CBD oil.
In the 2018 Farm Bill, the definition of hemp changed from its definition in the 2014 Farm Bill. First, the word “industrial” was dropped from “hemp” in the first acknowledgement that hemp had far more uses than fiber and seed. Second, some words were added to clarify that the intent of Congress wasn’t just to legalize the hemp plant, but also “any part of that plant, including … all derivatives, extracts, cannabinoids…” with a THC level below 0.3 percent.
This language made it crystal clear that cannabinoids like CBD were now legal, but what about THC?
Within six months of McConnell engineering the passage of the 2018 Farm Bill, the general counsel of the United States Department of Agriculture issued a memo removing all doubt about that USDA’s position that the Farm Bill “amends the [Controlled Substances Act] to exclude THC in hemp from Schedule I.”
So, that’s it — THC that comes from hemp is now legal, so long as it’s below that 0.3 percent by dry weight threshold established by McConnell and his colleagues in Congress. The “dry weight” of CBD oil is quite light, but a company can still legally produce full spectrum CBD oil with multiple milligrams of THC per serving.
And yet still, the concept of fully legal delta-9 THC in hemp-derived extract wasn’t really marketed to consumers in a robust way. And then, about a year ago, there was a sudden boom of products that contained delta-8 THC.
What the heck is delta-8 THC? It’s essentially a synthetic cannabinoid that has the “getting high” effect of delta-9 THC but made from hemp-derived CBD isolate. And because the 2018 Farm Bill explicitly legalized “isomers” of cannabinoids, then this delta-8 THC stuff is legal, even though it’s garbage.
The US Food and Drug Administration has issued warnings on the safety of delta-8 THC, as well as NORML, the cannabis rights group, which called delta-8 THC “not safe for consumption.” It’s not often that the FDA and NORML are on the same page when it comes to cannabis advice, so it stands to reason that if both these organizations see a problem with delta-8 THC, then there’s probably a problem with delta-8 THC.
That’s where federally legal delta-9 THC comes in to save the day. Why worry about delta-8 THC, when — thanks to Mitch McConnell — a person living anywhere in the United States can order USDA-certified organic hemp products with a measurable amount of delta-9 THC in them and have them delivered to their door by the US Postal Service?
In terms of legalizing cannabis at the federal level, there’s still a long way to go. But the camel’s nose is under the tent, and balanced upon that camel’s nose is a gummy. And the man to thank for allowing that camel to put his nose under this tent is Sen. Mitch McConnell of Kentucky. Once again: Thanks, Mitch!
Jim Higdon is co-founder of Cornbread Hemp and author of The Cornbread Mafia. He covers Kentucky for The Washington Post and cannabis policy for POLITICO, and freelances elsewhere
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