The clock is ticking for the hemp industry and its supporters as they scramble to persuade Congress to halt or postpone an impending prohibition on their products.
If no legislative action is taken, a ban on intoxicants derived from hemp is set to be enforced in November.
There is a bipartisan push to prevent the ban—originally driven by Sen. Mitch McConnell (R-Ky.) and woven into last year’s government funding legislation—with interest from likely successor Rep. Andy Barr (R-Ky.) as well.
However, McConnell views the maintenance of this ban as a key part of his legacy, meaning any attempts to alter or delay it will have to gain his approval.
“If Mitch is actively discouraging action, I suspect there won’t be significant shifts in votes,” Sen. Ted Cruz (R-Texas) remarked to the Hemp Industry & Farmers of America (HIFA), according to a call transcript viewed by The Hill.
McConnell wants hemp to remain an agricultural product, rather than the synthetic marijuana version in the beverages, vapes and gummies that have become ubiquitous in gas stations, smoke shops and convenience stores.
Cruz was the only other Republican to vote for an amendment sponsored by Sen. Rand Paul (R-Ky.) last fall that would have stripped the hemp language.
Cruz said he thinks any solution likely won’t happen until McConnell retires at the end of the year.
Barr, who was endorsed by President Trump, won Kentucky’s GOP primary and is considered the favorite to win the Senate seat.
“This played out very much as a personal battle between Mitch McConnell and Rand Paul,” Cruz said.
“I think with Andy [Barr] coming in next year, you, you might see a different dynamic there. I think Andy will be a very different senator than Mitch is, and I think he’ll be a very different senator than Rand is, and that might be beneficial to resolving this issue,” Cruz said.
McConnell led the charge to legalize hemp in the 2018 farm bill, with the intent that it could be used in agriculture and textiles.
But the law’s broad definition and subsequent lack of federal regulation created a loophole that allowed companies to extract and synthesize high levels of THC, the psychoactive compound in marijuana responsible for a high.
The market soon flooded with hemp-derived gummies, drinks and vapes that can give people a marijuana-like high without being considered marijuana. The products are sold without consistent age restrictions or labeling regulations and oftentimes resemble candy.
So McConnell sought to close the so-called “hemp loophole” and take those products off the market, and his provision was included in last November’s government funding bill.
Multiple bills have been introduced or are under discussion that would either postpone implementation of those restrictions or create an entirely new regulatory and tax structure for hemp-derived THC products.
“We are closer than we’ve ever been to having good legislation around this, and also the farthest we’ve ever been, because we also could lose everything in a few months,” said Thomas Winstanley, executive vice president at Edibles.com.
Barr’s proposal, introduced as an amendment to the House Agriculture and Food and Drug Administration appropriations bill, offered a regulatory pathway that would keep intoxicating products on the market.
Speaking during a HIFA meeting last month, Barr said he wanted to create a “level playing field” with alcoholic beverages.
“No one industry should have a unique, special competitive advantage based on the law,” Barr said.
But the Rules Committee rejected his amendment, as well as others from Reps. Russell Fry (R-S.C.) and Ilhan Omar (D-Minn.), respectively, that would have delayed the planned recriminalization.
Rep. James Comer’s (R-Ky.) amendment to defund enforcement was withdrawn minutes before the panel met.
Barr is expected to introduce his bill as standalone legislation in the coming weeks.
But lobbyists indicated that even parts of the hemp industry don’t support his bill, because it’s too permissive and would leave the door open for companies to continue to abuse the loophole.
There are other legislative vehicles in play, including from Rep. Morgan Griffith (R-Va.), who chairs the Energy and Commerce health subcommittee.
But re-opening the loophole is opposed by the marijuana industry and much of the alcohol industry.
Barr is co-chairman of the Congressional Bourbon Caucus, and acknowledged the opposition his effort is facing.
“I don’t think you have to choose. I think you can be an advocate of both hemp products and Kentucky bourbon. So the issue is a level playing field,” he said.
But sources in both alcohol and marijuana industries think there isn’t much political will. The deadline for the ban isn’t until after the midterm elections, and the intoxicating hemp industry, while growing, isn’t moving voters.
“Who in America is voting or changing how they vote based on hemp law?” said a marijuana industry source.
One alcohol industry source added, “Their products don’t even register in our polling for consumers.”
“Yes, there’s a market for them, but it is incredibly small.”