The 2018 Farm Bill’s Hemp Definition and Legal Challenges to State Laws Restricting Certain THC Products
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The 2018 Farm Bill’s Hemp Definition and
Legal Challenges to State Laws Restricting
Certain THC Products
August 20, 2025
Congressional Research Service
https://crsreports.congress.gov
R48637
SUMMARY
The 2018 Farm Bill’s Hemp Definition and Legal
Challenges to State Laws Restricting Certain
THC Products
R48637
August 20, 2025
Dorothy C. Kafka
Legislative Attorney
Unless an exception applies, cannabis and its derivatives are considered marijuana, which is a
Schedule I controlled substance under the Controlled Substances Act (CSA). Schedule I
controlled substances are subject to the most stringent regulation by the U.S. Drug Enforcement
Administration (DEA), and prohibited acts with Schedule I controlled substances are subject to criminal punishment. One
exception to the general rule categorizing cannabis as marijuana is hemp. The Agriculture Improvement Act of 2018 (2018
farm bill) carved out hemp from the definition of marijuana in the CSA. After passage of the 2018 farm bill, hemp is no
longer a controlled substance under the CSA. The 2018 farm bill defines hemp as any part of the cannabis plant or its
derivatives containing no more than 0.3% delta-9 tetrahydrocannabinol (delta-9 THC) on a dry-weight basis. Delta-9 THC is
a cannabinoid, a chemical compound produced by cannabis. Tetrahydrocannabinols (THCs)—of which delta-9 THC is one
type—are psychoactive cannabinoids that are naturally contained in cannabis or synthetically created in a lab. Other
cannabinoids (like cannabidiol, or CBD) are not psychoactive. THC is separately classified as a Schedule I controlled
substance, unless an exception applies. Similar to the 2018 farm bill’s exclusion of hemp from the definition of marijuana,
DEA’s scheduling regulations exclude substances that meet the definition of hemp implemented by the 2018 farm bill from
the classification of THC as a Schedule I controlled substance.
Following the enactment of the 2018 farm bill, the cannabis industry began producing certain cannabis products that contain
less than 0.3% delta-9 THC but a total THC concentration that exceeds 0.3%. Some of these products may be intoxicating to
the user. Given that THC is separately listed as a Schedule I controlled substance, there is some uncertainty regarding which
of these products are legally considered hemp. DEA and two federal appellate courts have interpreted the hemp provisions of
the 2018 farm bill to reach divergent conclusions regarding whether certain cannabis products are hemp.
In August of 2020, DEA issued an interim final rule to clarify the interaction between the 2018 farm bill’s hemp provisions,
the CSA’s regulation of THC as a Schedule I controlled substance, and DEA scheduling regulations that exclude hemp from
the classification of THC. In the rule, FDA stated that the 2018 farm bill “limits the control” of THC that is “naturally
occurring” in hemp but that it “does not impact the control status of synthetically derived tetrahydrocannabinols.” In a 2021
opinion letter, DEA stated that it considered delta-8 THC (another type of THC produced by cannabis) to be hemp if it is
extracted from cannabis that has a delta-9 THC concentration of not more than 0.3%, but delta-8 THC would be a synthetic
THC—and therefore a Schedule I controlled substance—if it is produced from non-cannabis materials. The U.S. Court of
Appeals for the Ninth Circuit held in AK Futures LLC v. Boyd Street Distro that the plaintiff’s delta-8 THC products fit
within the statutory definition of hemp because the products are “hemp-derived” and contain “less than 0.3% of delta-9
THC,” rejecting the argument that the products were synthetic THC because the delta-8 THC was extracted or refined
through a manufacturing process. Later, the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit) held in Anderson v.
Diamondback Investment Group, LLC that the plaintiff’s THC-O products were hemp, directly contradicting DEA’s March
15, 2023, letter opining that products containing THC-O are Schedule I controlled substances because they contain
synthetically derived THC.
As products with more than 0.3% concentration of total THC have entered the market, many states have passed or are
debating laws restricting or prohibiting these products. Various participants in the hemp industry have challenged several of
these state efforts to prohibit certain cannabis products by filing lawsuits, primarily arguing that (1) the state laws violate the
Dormant Commerce Clause and (2) the 2018 farm bill preempts the state laws. Two federal appellate courts, the Fourth
Circuit and the Eighth Circuit, have issued opinions upholding two such state laws from Virginia and Arkansas, respectively.
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The 2018 Farm Bill’s “Hemp” Definition and Related Legal Challenges
Contents
Introduction ..................................................................................................................................... 1
Background on Cannabis, Hemp, and Marijuana ............................................................................ 2
Federal Interpretations of the 2018 Farm Bill’s Definition of Hemp .............................................. 4
DEA’s Interim Final Rule and 2021 Opinion Letter.................................................................. 5
The Ninth Circuit’s Decision in AK Futures LLC v. Boyd Street Distro ................................... 5
DEA’s 2023 Opinion Letter ....................................................................................................... 7
The Fourth Circuit’s Decision in Anderson v. Diamondback Investment Group ...................... 8
Legal Challenges to State Laws Restricting Certain THC Products ............................................... 9
Legal Background ..................................................................................................................... 9
Federal and State Status of Cannabis .................................................................................. 9
Preemption ........................................................................................................................ 10
Dormant Commerce Clause ...............................................................................................11
Virginia .................................................................................................................................... 12
Arkansas .................................................................................................................................. 14
Considerations for Congress.......................................................................................................... 16
Contacts
Author Information........................................................................................................................ 18
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The 2018 Farm Bill’s “Hemp” Definition and Related Legal Challenges
Introduction
Marijuana has been regulated under Schedule I of the Controlled Substances Act (CSA)—the
most stringent level of controls—since 1970.1 In 2018, Congress carved out an exception for
certain cannabis substances from regulation under the CSA in the Agriculture Improvement Act
of 2018 (2018 farm bill) by defining hemp and excluding hemp from the definition of marijuana.2
The 2018 farm bill defines hemp based on how much delta-9 tetrahydrocannabinol (delta-9 THC)
is in the product—a type of cannabinoid found in the cannabis plant with psychoactive effects
that produces the “high” associated with marijuana.3 The 2018 farm bill carve out means that
certain products derived from cannabis, such as cannabidiol (CBD) products, may be sold without
violating the CSA, so long as they contain less than 0.3% delta-9 THC.4 In addition to delta-9
THC, other cannabinoids found in or derived from the cannabis plant, such as delta-8 THC, may
also be psychoactive and produce a “high” effect.5 Following enactment of the 2018 farm bill, the
cannabis industry has manufactured and sold many products that contain less than 0.3% delta-9
THC but contain other cannabinoids with psychoactive effects and may produce the “high”
typically associated with marijuana—such products are sometimes called “intoxicating hemp”
products.6 Producers of intoxicating hemp products have asserted that such products qualify as
hemp as defined under the 2018 farm bill based on the level of delta-9 THC.7
The proliferation of such products has led to questions at the federal level as to which products
are regulated as marijuana under the CSA and which fall under hemp exemption. The U.S. Drug
Enforcement Administration (DEA), which administers the CSA, and the courts have interpreted
the 2018 farm bill’s definition of hemp and considered its interaction with the CSA and DEA’s
scheduling regulations to determine which products are legally considered to be hemp.8 The rise
of intoxicating hemp products has also generated concern in certain states.9 Since the enactment
of the 2018 farm bill, some states have passed legislation restricting or prohibiting certain hemp
products, often by amending the states’ controlled substances laws.10 In response, various
1 Controlled Substances Act, Pub. L. No. 91-513, tit. II, 84 Stat. 1242 (1970) (codified as amended at 21 U.S.C. §§
801–904).
2 The Agriculture Improvement Act of 2018 (2018 farm bill), Pub. L. No. 115-334, § 297A(1), 132 Stat. 4490 (2018).
3 7 U.S.C. § 1639o(1).
4 See id.; 21 U.S.C. §§ 802(16), 812(c)(10).
5 Elena Schmidt, Comparing Exotic Cannabinoids: Delta-9 THC, Delta-8, Delta-10, HHC, HHCP, THCOa & THCP,
ACS Laboratory (Dec. 10, 2024), https://www.acslab.com/cannabinoids/comparing-exotic-cannabinoids.
6 Paul Demko, Kids Are Buying Pot-Like Drugs from Corner Stores. Lawmakers Want to Stop It., POLITICO (Mar. 13,
2024), https://www.politico.com/news/2024/03/13/hemp-regulator-crackdown-00146398.
7 Id.; see also AK Futures LLC’s Response Brief at 18, AK Futures LLC v. Boyd St. Distro, 35 F.4th 682 (9th Cir.
2022) (No. 21-56133), ECF No. 14.
8 See Implementation of the Agriculture Improvement Act of 2018, 85 Fed. Reg. 51639 (Aug. 21, 2020) (to be codified
at 21 C.F.R. pts. 1308, 1312); AK Futures LLC v. Boyd St. Distro, 35 F.4th 682, 682 (9th Cir. 2022); Anderson v.
Diamondback Invest. Grp. LLC, 117 F.4th 165, 188 (4th Cir. 2024).
9 See Demko, supra note 6 (“In more than 20 states—ranging from Florida to Ohio, California to Mississippi—
legislators are proposing laws aimed at putting stricter guardrails around intoxicating hemp products or banning them
altogether.”).
10 See, e.g., VA. CODE ANN. § 3.2-4112 (2023) (“‘Hemp product’ means a product . . . that . . . when offered for retail
sale . . . contains a total tetrahydrocannabinol concentration of no greater than 0.3 percent . . .”); id. § 4.1-600 (2023)
(defining marijuana for purposes of the Cannabis Control Act as any part of the cannabis plant, excluding hemp
products as defined in § 3.2-4112, subject to certain exceptions); id. § 4.1-1116 (2023) (criminalizing the advertising of
marijuana); id. § 4.1-1108 (2021) (criminalizing the consumption of marijuana in any public place); id. § 4.1-1100
(2023) (criminalizing the possession of more than one ounce of marijuana); id. § 18.2-248.1 (2020) (criminalizing the
(continued...)
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The 2018 Farm Bill’s “Hemp” Definition and Related Legal Challenges
participants in the cannabis industry have challenged several of these new laws.11 For example,
lawsuits have been filed to challenge the laws of Arkansas and Virginia, in which hemp industry
plaintiffs asserted that the state laws restricting or prohibiting certain THC products are
preempted by the 2018 farm bill and violate the Dormant Commerce Clause.12
This report begins with some background on cannabis and the legal definitions of hemp and
marijuana. It then discusses DEA’s efforts to implement the hemp definition in the 2018 farm bill
and two federal appellate decisions interpreting the definition. The report then provides an
overview of two states’ recent efforts to regulate intoxicating hemp and the legal challenges to
those state laws based on federal preemption and the Dormant Commerce Clause. The report
concludes with selected considerations for Congress.
Background on Cannabis, Hemp, and Marijuana
Cannabis produces, or can be used to produce, chemical compounds called cannabinoids.13
Cannabis has long been used for its psychoactive effects by inhalation or consumption of the
leaves, but increasingly entities are extracting specific compounds and isolating or chemically
manipulating them to introduce them into a wider array of products.14 Some of these products are
nonintoxicating products like CBD oil, while others may be used in products that may have
psychoactive effects.15 Federal law treats cannabis products differently depending on the type and
quantity of the cannabinoids they contain and depending on whether the cannabinoids are
“synthetically derived.”16 The most well-known types of cannabinoids are tetrahydrocannabinol
(THC) and CBD.17 CBD is not psychoactive, but THC is psychoactive and may produce the
“high” associated with marijuana.18 There are many types of THC. Delta-9 THC is the most
common and well-known form of THC and naturally occurs in the cannabis plant.19 Other forms
of THC include delta-8 tetrahydrocannabinol (delta-8 THC), delta-10 tetrahydrocannabinol
(delta-10 THC), and tetrahydrocannabinol-O-acetate (THC-O).20 Some types of THC occur
naturally in the cannabis plant, while others do not, and the chemical processes required to isolate
sale of marijuana); ARK. CODE ANN. § 5-64-215(a)(5)(A)(i) (2023) (including on Schedule VI “[a] product derived
from industrial hemp that was produced as a result of a synthetic chemical process that converted the industrial hemp or
a substance contained in the industrial hemp into delta-8, delta-9, delta-6a,10a, or delta-10 tetrahydrocannabinol
including their respective acetate esters; and [ ] any other psychoactive substance derived therein”); id. § 5-64419(b)(5) (2021) (criminalizing the possession of Schedule VI controlled substances); see also Katharine Neill Harris,
Victoria Jupp & Lisa Pittman, Mapping Hemp Products’ Legal Status Across US States, BAKER INSTITUTE (Dec. 6,
2024), https://www.bakerinstitute.org/research/mapping-hemp-products-legal-status-across-us-states.
11 See N. Va. Hemp & Ag. LLC, 700 F. Supp. at 416; Bio Gen LLC, 690 F. Supp. 3d at 933–34.
12 Id.
13 FDA Regulation of Cannabis and Cannabis-Derived Products, Including Cannabidiol, FDA (July 16, 2024),
https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived-productsincluding-cannabidiol-cbd#whatare.
14 See Schmidt, supra note 5.
15 See Demko, supra note 6.
16 See 7 U.S.C. § 1639o(1) (definition of “hemp”); 21 U.S.C. § 802(16) (definition of “marijuana”); Implementation of
the Agriculture Improvement Act of 2018, 85 Fed. Reg. 51639, 51641 (Aug. 21, 2020) (to be codified at 21 C.F.R. pts.
1308, 1312).
17 What You Need to Know (And What We’re Working to Find Out) About Products Containing Cannabis or CannabisDerived Compounds, Including CBD, FDA (Mar. 5, 2020), https://www.fda.gov/consumers/consumer-updates/whatyou-need-know-and-what-were-working-find-out-about-products-containing-cannabis-or-cannabis.
18
Id.
19 Id.
20 See Schmidt, supra note 5.
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or produce sufficient quantities to use vary depending on the type of THC. For example, delta-8
THC and delta-10 THC are found in cannabis in trace amounts, and they are manufactured by
chemically altering CBD.21 THC-O is a psychoactive cannabinoid that does not occur naturally in
the cannabis plant.22 It is made by converting CBD extracted from hemp to delta-8 THC and then
adding acetic anhydride to the delta-8 THC molecules to produce THC-O.23
Under federal law, cannabis and its derivatives fall into two main categories: marijuana and
hemp. Currently, unless an exception applies, cannabis and its derivatives are legally classified as
marijuana, which is a Schedule I controlled substance under the federal CSA.24 Inclusion in
Schedule I means marijuana is subject to the most stringent CSA restrictions, and unauthorized
activities involving marijuana are subject to significant criminal penalties.25
Hemp is the primary exception to the general rule categorizing cannabis as marijuana. The 2018
farm bill established a legal definition of hemp and excluded hemp from the definition of
marijuana under the CSA.26 Thus, after enactment of the 2018 farm bill, hemp is no longer a
controlled substance under the CSA.27 The 2018 farm bill defines hemp as any part of the plant or
its derivatives containing no more than 0.3% delta-9 THC.28
THC has been separately classified as a Schedule I controlled substance since 1970, unless an
exception applies.29 THC includes THC that naturally occurs in the plant and synthetic
equivalents of those substances, as well as their derivatives and isomers.30 DEA’s existing
regulation classifying THC as a Schedule I controlled substance was amended to exclude hemp
following the enactment of the 2018 farm bill.31 Similar to the 2018 farm bill’s exclusion of hemp
from the statutory definition of marijuana, DEA’s scheduling regulations exclude substances that
meet the definition of hemp implemented by the 2018 farm bill from the classification of THC as
a Schedule I controlled substance.32 Specifically, DEA’s regulatory definition of THC excludes
21 5 Things to Know About Delta-8 Tetrahydrocannabinol – Delta-8 THC, FDA (May 4, 2022),
https://www.fda.gov/consumers/consumer-updates/5-things-know-about-delta-8-tetrahydrocannabinol-delta-8-thc; Pat
Goggins, What Is Delta-10?, LEAFLY (Aug. 29, 2022), https://www.leafly.com/news/cannabis-101/what-is-delta-10.
22 Dario Sabaghi, What Is THC-O Acetate, and Why Is It Getting Attention?, FORBES (Apr. 4, 2022),
https://www.forbes.com/sites/dariosabaghi/2022/01/18/what-is-thc-o-acetate-and-why-is-it-getting-attention/.
23 Id.
24 21 U.S.C. §§ 801–904.
25 See 21 U.S.C. § 841. For more information on marijuana’s status as a Schedule I controlled substance under the
Controlled Substances Act, see CRS In Focus IF12270, The Federal Status of Marijuana and the Policy Gap with
States, by Lisa N. Sacco, Joanna R. Lampe, and Hassan Z. Sheikh (2024).
26 7 U.S.C. § 1639o(1); 21 U.S.C. § 802(16).
27 See 7 U.S.C. § 1639o(1); 21 U.S.C. § 802(16). The buying and selling of hemp products, however, may violate other
federal law. The farm bill explicitly preserved the authority of the U.S. Food and Drug Administration (FDA) to
regulate these products under the Federal Food, Drug, and Cosmetic Act (FD&C Act), and therefore products
containing hemp remain subject to the provisions of the FD&C Act and FDA’s regulations. See 7 U.S.C. § 1639r(c).
FDA’s regulation of hemp falls outside of the scope of this report. For more information on FDA’s regulation of hemp,
see CRS In Focus IF12477, FDA’s Oversight of Hemp-Derived Compounds, by Renée Johnson (2023), and CRS Legal
Sidebar LSB11227, Legal Effect of Marijuana Rescheduling on FDA’s Regulation of Cannabis, by Dorothy C. Kafka
(2024).
28 7 U.S.C. § 1639o(1).
29 21 C.F.R. § 1308.11(d)(31) (2025); see also Controlled Substances Act § 202(c)(17).
30 21 C.F.R. § 1308.11(d)(31).
31 See Implementation of the Agriculture Improvement Act of 2018, 85 Fed. Reg. 51639 (Aug. 21, 2020) (to be
codified at 21 C.F.R. pts. 1308, 1312).
32 Id.
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“any material, compound, mixture, or preparation” that qualifies as hemp as defined in the 2018
farm bill.33
Following enactment of the 2018 farm bill, the cannabis industry began producing certain
products that contain less than 0.3% delta-9 THC but have a total THC concentration that exceeds
0.3%.34 As a result of the total THC concentration, these products may be intoxicating to the
user.35 Due to the delta-9 THC concentration, however, these products may legally qualify as
hemp and be exempt from CSA restrictions that apply to marijuana and to THC specifically.
Critics of the proliferation of these THC products dub this interpretation of the 2018 farm bill the
“THC loophole.”36 Given that THC is separately listed as a Schedule I controlled substance,
certain products may contain less than 0.3% delta-9 THC, potentially qualifying as hemp, while
also containing amounts of another separately scheduled THC (e.g., delta-8 THC) whose presence
would normally cause the product to be scheduled. There is therefore some uncertainty regarding
whether certain of these products are legally considered hemp.
Federal Interpretations of the 2018 Farm Bill’s
Definition of Hemp
As discussed above, marijuana and THC are Schedule I controlled substances under the CSA, but
hemp is not.37 Cannabis and its derivatives are considered marijuana unless an exception applies,
and one such exception is hemp.38 Hemp is defined in the 2018 farm bill as follows:
The term “hemp” means the plant 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, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of
not more than 0.3 percent on a dry weight basis.39
THC is a type of cannabinoid that is found in the cannabis plant and may be present in both hemp
and marijuana.40 Since the passage of the 2018 farm bill, courts and DEA have considered how
this exception applies to certain cannabis products containing a total THC concentration of 0.3%
or greater but less than 0.3% delta-9 THC.41
33 Id.
34 See Demko, supra note 6.
35 Id.
36 Rob Mentzer, A Loophole in Federal Marijuana Law Has Led to the Creation of New THC Product, NPR (Jan. 4,
2025), https://www.npr.org/2022/01/04/1070338052/a-loophole-in-federal-marijuana-law-has-led-to-the-creation-ofnew-thc-product.
37 See 21 U.S.C. § 802(16); 21 C.F.R. § 1308.11(d)(31) (2025).
38 7 U.S.C. § 1639o(1); 21 U.S.C. § 802(16).
39 7 U.S.C. § 1639o.
40 See What You Need to Know (And What We’re Working to Find Out) About Products Containing Cannabis or
Cannabis-Derived Compounds, Including CBD, supra note 17.
41 See Implementation of the Agriculture Improvement Act of 2018, 85 Fed. Reg. 51639 (Aug. 21, 2020) (to be
codified at 21 C.F.R. pts. 1308, 1312); AK Futures LLC v. Boyd St. Distro, 35 F.4th 682, 682 (9th Cir. 2022); DEA,
Opinion Letter to Kight Law Office PC (Feb. 13, 2023), https://cannabusiness.law/wp-content/uploads/DEA-THCOresponse-to-Kight.pdf; Anderson v. Diamondback Invest. Grp. LLC, 117 F.4th 165, 188 (4th Cir. 2024).
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DEA’s Interim Final Rule and 2021 Opinion Letter
On August 21, 2020, DEA issued an interim final rule to clarify its interpretation of the hemp
provisions of the 2018 farm bill.42 In this rule, DEA explains how the 2018 farm bill’s descheduling of hemp affected the Schedule I status of THC.43 The interim final rule states that the
2018 farm bill “limits the control” of THC that is “naturally occurring” in hemp.44 According to
DEA, the 2018 farm bill “does not impact the control status of synthetically derived [THC]
because the statutory definition of ‘hemp’ is limited to materials that are derived” from the
cannabis plant.45 For products with “synthetically derived” THC, the amount of delta-9 THC “is
not a determining factor in whether the material is a controlled substance” because “[a]ll
synthetically derived [THCs] remain schedule I controlled substances.”46
The precise meaning of “synthetically derived” THC is the subject of some debate, with many
interested parties submitting public comments asking for clarification on the phrase’s meaning.47
Some have argued that any cannabinoid that needs to be extracted or refined through a
manufacturing process is “synthetically derived.”48 Others have argued that, regardless of the
extraction process, a THC that naturally occurs in the cannabis plant is not “synthetically
derived,” and a THC that does not occur naturally in the plant and must be made in a laboratory is
“synthetically derived.”49
In a September 2021 opinion letter, DEA took the position that THC is a “synthetically derived”
Schedule I controlled substance if it is produced from non-cannabis materials.50 DEA stated that it
considered delta-8 THC to be hemp if it is extracted from a cannabis substance but a Schedule I
controlled substance if the delta-8 THC is synthetically produced from non-cannabis materials.51
The Ninth Circuit’s Decision in AK Futures LLC v. Boyd Street
Distro
The U.S. Court of Appeals for the Ninth Circuit has considered whether cannabis products
containing delta-8 THC were legally hemp or marijuana.52 In AK Futures LLC v. Boyd Street
Distro, the court concluded that the products at issue were hemp.53
42 Implementation of the Agriculture Improvement Act of 2018, 85 Fed. Reg. 51639 (Aug. 21, 2020) (to be codified at
21 C.F.R. pts. 1308, 1312).
43 Id.
44 Id. at 51641.
45 Id.
46 Id.
47 See DEA 2020-0023: Implementation of the Agriculture Improvement Act of 2018, REGULATIONS.GOV (Aug. 21,
2020), https://www.regulations.gov/document/DEA-2020-0023-0001/comment?filter=synthetic.
48 See, e.g., Response Brief of Defendant-Appellee Diamondback Investment Group, LLC at 33–34, Anderson v.
Diamondback Invest. Grp. LLC, 117 F.4th 165, 188 (4th Cir. 2024) (No. 23-1400), ECF No. 17.
49 See, e.g., Reply Brief of Appellant Tonya Anderson at 11, Anderson v. Diamondback Invest. Grp. LLC, 117 F.4th
165, 188 (4th Cir. 2024) (No. 23-1400), ECF No. 18.
50 See DEA, Opinion Letter to Alabama Board of Pharmacy (Sept. 15, 2021),
https://albop.com/oodoardu/2021/10/ALBOP-synthetic-delta8-THC-21-7520-signed.pdf.
51
Id.
52 See AK Futures, 35 F.4th at 682.
53 Id. at 692.
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In AK Futures, the plaintiff filed a lawsuit claiming, among other things, that the defendant
infringed on its “Cake”-branded trademark for one of its e-cigarette products by selling
counterfeit versions of the product.54 As an affirmative defense, the defendant argued that the
plaintiff did not have a protectible trademark in the “Cake” brand because the plaintiff’s products
containing delta-8 THC were illegal.55 The plaintiff countered that the 2018 farm bill’s definition
of hemp encompassed delta-8 THC products as long as they contained no more than 0.3% delta-9
THC.56 Specifically, the plaintiff contended that a straightforward reading of the 2018 farm bill
deems all products that are sourced from the cannabis plant and contain no more than 0.3% delta9 THC to be hemp.57
In contrast, the defendant argued that the delta-8 THC in the plaintiff’s products was a Schedule I
controlled substance because it was a “synthetic THC.”58 According to the defendant, hemp
excludes synthetic THCs, which all “remain schedule I controlled substances.”59 Under the
defendant’s interpretation, a material may be synthetic THC if it was chemically manipulated or
manufactured, and this distinction does not depend on the source of the material.60 According to
the defendant, delta-8 THC is “synthetically derived” because it must be extracted from the
cannabis plant and “refined through a manufacturing process.”61
The federal trial court had granted the plaintiff’s motion for a preliminary injunction, finding
(among other things) that the plaintiff was likely to succeed on its claim that its products were
legal, and therefore protectible under trademark law.62 The Ninth Circuit affirmed, holding that
the plaintiff’s delta-8 THC products fit within the statutory definition of hemp because the
plaintiff’s uncontradicted evidence indicated that the products were “hemp-derived” and
contained “less than 0.3% of delta-9 THC.”63 To support its conclusion, the appellate panel noted
that delta-8 THC is “produced naturally by the cannabis plant.”64 The court held that the 2018
farm bill definition did not depend on the manner in which derivatives, extracts, and cannabinoids
were produced.65 Rather, the definition encompassed all such derivatives, extracts, and
cannabinoids so long as they were derived from the cannabis plant rather than from non-cannabis
materials.66
54 Id. at 685–86.
55 Appellant’s Opening Brief at 5, AK Futures LLC v. Boyd St. Distro, 35 F.4th 682 (9th Cir. 2022) (No. 21-56133),
ECF No. 9. To own an unregistered trademark, a party must demonstrate it was “the first to use the mark in commerce,
and such use must be lawful.” AK Futures, 35 F.4th at 689 (citing S. Cal. Darts Ass’n v. Zaffina, 762 F.3d 921, 926,
930-32 (9th Cir. 2014)).
56 AK Futures LLC’s Response Brief at 18, AK Futures LLC v. Boyd St. Distro, 35 F.4th 682 (9th Cir. 2022) (No. 2156133), ECF No. 14.
57 Id. at 18–19.
58 Appellant’s Opening Brief at 12, AK Futures LLC v. Boyd St. Distro, 35 F.4th 682 (9th Cir. 2022) (No. 21-56133),
ECF No. 9 (citing Implementation of the Agriculture Improvement Act of 2018, 85 Fed. Reg. 51639, 51641 (Aug. 21,
2020)).
59 Id.
60 Id.
61 AK Futures, 35 F.4th at 692.
62 AK Futures LLC v. Boyd St. Distro LLC, 2021 WL 4860513, *1, 5 (C.D. Cal. Sept. 15, 2021).
63 AK Futures, 35 F.4th at 691 (internal quotation marks omitted); see also id. at 696 (“Plain statutory text compels the
conclusion that AK Futures’ products are lawful, and we see no other reason to deny a preliminary injunction. We
affirm.”).
64
Id. at 691.
65 Id. at 692.
66 Id.
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The Ninth Circuit also rejected the defendant’s arguments that relied on DEA’s final rule
interpreting the 2018 farm bill.67 As an initial matter, the panel held that it did not need to
consider whether to defer to DEA’s interpretation because the statute’s definition of hemp is
unambiguous.68 The court nevertheless observed that, even under DEA’s interpretation, the
products at issue would have been considered hemp and not synthetic THC.69 According to the
court, DEA’s interpretation is consistent with its view that hemp is “materials that are derived
from” cannabis, and synthetic THC is materials “derived from non-cannabis sources.”70 This
explanation, the court suggested, meant that DEA believed that the source of the product—not the
method of manufacture—was the dispositive factor for ascertaining whether the product is hemp
or is synthetic THC.71 In response to the defendant pointing out that delta-8 THC appears on
DEA’s website among the Schedule I controlled substances, the Ninth Circuit determined that, to
the extent the website suggests that hemp-derived delta-8 THC remains controlled regardless of
its delta-9 concentration level, it is inconsistent with both the statutory text and DEA’s
regulations.72
DEA’s 2023 Opinion Letter
In another opinion letter issued on February 13, 2023, DEA addressed the status of THC-O.73 In
the letter, DEA opined that THC-O—a compound that does not occur naturally in the cannabis
plant—is a Schedule I controlled substance because it “can only be obtained synthetically, and
therefore [does] not fall under the definition of hemp.”74 The opinion letter did not explicitly
address the agency’s prior position in the 2021 opinion letter that a THC compound is
synthetically derived if it comes from non-cannabis materials.75 The 2023 letter focused on
whether or not the cannabinoid naturally occurs in cannabis, rather than whether or not the
cannabinoid was derived from cannabis materials.76
67 Id.
68 Id. The now-overturned Chevron doctrine required courts to defer to reasonable agency interpretations of statutes if
the statute is ambiguous. See Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). The Ninth Circuit did not
consider whether DEA’s interpretation of the statute was reasonable because the court determined that the statute was
unambiguous. AK Futures, 35 F.4th at 692. After Loper Bright, a court is not required to defer to reasonable agency
interpretations of ambiguous statutes; instead, a court must interpret a statute to find its “best” reading, applying the
traditional tools of statutory interpretation. Loper Bright, 603 U.S. at 23. For more information on the overruling of the
Chevron doctrine, see CRS Legal Sidebar LSB11189, Supreme Court Overrules Chevron Framework, by Benjamin M.
Barczewski (2024).
69 AK Futures LLC, 35 F.4th at 692 (quoting Implementation of the Agriculture Improvement Act of 2018, 85 Fed.
Reg. 51639, 51641 (Aug. 21, 2020)).
70 Id.
71 Id.
72 Id. at 693.
73 DEA, Opinion Letter to Kight Law Office PC (Feb. 13, 2023), https://cannabusiness.law/wp-content/uploads/DEATHCO-response-to-Kight.pdf.
74 Id.
75 See DEA, Opinion Letter to Alabama Board of Pharmacy (Sept. 15, 2021),
https://albop.com/oodoardu/2021/10/ALBOP-synthetic-delta8-THC-21-7520-signed.pdf; DEA, Opinion Letter to Kight
Law Office PC (Feb. 13, 2023), https://cannabusiness.law/wp-content/uploads/DEA-THCO-response-to-Kight.pdf.
76 Id.
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The Fourth Circuit’s Decision in Anderson v. Diamondback
Investment Group
On September 4, 2024, the Fourth Circuit issued an opinion in Anderson v. Diamondback
Investment Group that appears to contradict DEA’s 2023 opinion letter on THC-O by determining
that products containing THC-O were hemp.77
In Anderson, the defendant employer fired the plaintiff from her job for failing two drug tests.78
The plaintiff claimed, among other things, that her firing violated a North Carolina law that
prohibited an employer from terminating an employee for engaging “in the lawful use of lawful
products.”79 The Fourth Circuit considered whether the products that the plaintiff consumed—
which included CBD oil, delta-8 THC, delta-10 THC, and THC-O—were legally hemp, and
therefore not subject to the CSA, under the 2018 farm bill.80 The plaintiff argued the products that
she used were legally hemp because they contained cannabinoids that naturally occurred in
cannabis, including the products containing THC-O.81 The defendant argued that at least one of
the products the plaintiff admitted to consuming, THC-O, is an illegal synthetic cannabinoid that
did not qualify as hemp.82 The defendant relied on the DEA interim final rule that states “all
synthetically derived [THCs] remain[ed] Schedule I controlled substances”83 and on the agency’s
2023 opinion letter that concluded THC-O was a Schedule I controlled substance because it did
“not naturally occur in the cannabis plant and can only be obtained synthetically.”84
The Fourth Circuit rejected the defendant’s argument and instead agreed with the Ninth Circuit in
AK Futures that the 2018 farm bill definition unambiguously establishes that “hemp” includes
“all” cannabinoids, and derivatives and extracts of cannabis, so long as they do not cross the 0.3%
delta-9 THC threshold.85 According to the court, whether a substance is considered hemp does not
depend on how it was manufactured but rather whether it comes from cannabis.86 The court also
noted that, in light of the U.S. Supreme Court’s decision in Loper Bright v. Raimondo overturning
the Chevron doctrine, the court would not need to defer to DEA’s interpretation even if the court
had determined that the statutory definition was ambiguous.87 According to the Fourth Circuit, a
77 See Anderson, 117 F.4th at 188.
78 Id. at 169–70.
79 Id. (quoting N.C. GEN. STAT. § 95-28.2(b) (2024)).
80 Id. at 182–88. The court also mentions that plaintiff consumed products containing hexahydrocannabinol, which is
another cannabinoid. Id. at 185.
81 Reply Brief of Appellant Tonya Anderson at 11, Anderson v. Diamondback Invest. Grp. LLC, 117 F.4th 165, 188
(4th Cir. 2024) (No. 23-1400), ECF No. 18. THC-O is made “by taking CBD [a cannabinoid naturally occurring in
cannabis] and converting it to Delta-8 or Delta-9,” then adding an “acetate.” Anderson, 117 F.4th at 185 n.11 (citing
Anna Kaufman, What Is THC-O? Similar to Delta-8, It’s Making Waves in the Cannabis Market, USA TODAY,
https://www.usatoday.com/story/news/health/2023/06/02/what-is-thco/70252031007/ (last updated June 6, 2023, 9:18
AM) (explaining that THC-O derives from hemp, though in a roundabout sort of way: it is manufactured “by taking
CBD and converting it to [d]elta-8 or [d]elta-9,” then adding an “acetate” to those cannabinoids)).
82 Response Brief of Defendant-Appellee Diamondback Investment Group, LLC at 33–34, Anderson v. Diamondback
Invest. Grp. LLC, 117 F.4th 165, 188 (4th Cir. 2024) (No. 23-1400), ECF No. 17.
83 Id. at 33 (citing Implementation of the Agriculture Improvement Act of 2018, 85 Fed. Reg. 51639, 51641 (Aug. 21,
2020)).
84 Id. (citing DEA, Opinion Letter to Kight Law Office PC (Feb. 13, 2023)).
85 Anderson, 117 F.4th at 187–88 (citing AK Futures, 35 F.4th at 692).
86 Id.
87 Id. (citing Loper Bright, 603 U.S. at 393). In Loper Bright, the U.S. Supreme Court overruled the Chevron doctrine,
which required courts to defer to an agency’s reasonable interpretation of an ambiguous statute administered by the
agency. Loper Bright Enters., 603 U.S. at 412.
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product containing THC-O that was derived from cannabis is hemp under the 2018 farm bill’s
definition so long as it does not contain more than 0.3% delta-9 THC.88 Synthetic cannabinoids,
the court opined, were “compounds manufactured entirely out of synthetic materials.”89
Legal Challenges to State Laws Restricting Certain
THC Products
Since the enactment of the 2018 farm bill, more than 20 states have enacted or are debating
legislation to stringently regulate cannabis products with a total THC concentration of more than
0.3%.90 Some of these laws—such as those in Virginia and Arkansas—prohibit certain activities
involving certain cannabis products by including them in their state controlled substances laws.91
Various parties within the cannabis industry have challenged some of these states’ laws on the
ground that (1) the 2018 farm bill preempts these laws and (2) the state laws violate the Dormant
Commerce Clause.92 The Fourth Circuit addressed a challenge to Virginia’s law, and the Eighth
Circuit addressed a challenge to Arkansas’s law.93
Legal Background
Federal and State Status of Cannabis
Under federal law, cannabis is categorized into hemp and marijuana. Unless an exception applies,
cannabis and its derivatives are considered marijuana, which, as discussed above, is a Schedule I
controlled substance under the CSA.94 One exception is hemp, which is defined by the 2018 farm
bill as any part of the cannabis plant or its derivatives containing no more than 0.3% delta-9
88 Id.
89 Id. at 188. Despite ruling that a product containing THC-O is not necessarily illegal, the court granted summary
judgment to the employer because the plaintiff did not offer any evidence about the delta-9 THC concentrations of the
products that she used. Id. This lack of evidence left the court unable to determine conclusively whether the products
that the plaintiff used were hemp, and thus lawful, under the 2018 farm bill’s definition. Id.
90 See Demko, supra note 6; Molly Ashford, As More States Move to Restrict Intoxicating Hemp, People in the Industry
Worry for Its Future, NPR (June 10, 2025), https://www.kcur.org/news/2025-06-10/states-restrict-intoxicating-hempindustry-future.
91 See VA. CODE ANN. § 3.2-4112 (2023) (“‘Hemp product’ means a product . . . that . . . when offered for retail sale . . .
contains a total tetrahydrocannabinol concentration of no greater than 0.3 percent . . .”); id. § 4.1-600 (2023) (defining
marijuana for purposes of the Cannabis Control Act as any part of the cannabis plant, including hemp products as
defined in § 3.2-4112, subject to certain exceptions); id. § 4.1-1116 (2023) (criminalizing the advertising of marijuana);
id. § 4.1-1108 (2021) (criminalizing the consumption of marijuana in any public place); id. § 4.1-1100 (2023)
(criminalizing the possession of more than one ounce of marijuana); id. § 18.2-248.1 (2020) (criminalizing the sale of
marijuana); ARK. CODE ANN. § 5-64-215(a)(5)(A)(i) (2023) (including on Schedule VI “[a] product derived from
industrial hemp that was produced as a result of a synthetic chemical process that converted the industrial hemp or a
substance contained in the industrial hemp into delta-8, delta-9, delta-6a,10a, or delta-10 tetrahydrocannabinol
including their respective acetate esters; and [ ] any other psychoactive substance derived therein”); id. § 5-64419(b)(5) (2021) (criminalizing the possession of Schedule VI controlled substances); see also Katharine Neill Harris,
Victoria Jupp & Lisa Pittman, Mapping Hemp Products’ Legal Status Across US States, BAKER INSTITUTE (Dec. 6,
2024), https://www.bakerinstitute.org/research/mapping-hemp-products-legal-status-across-us-states.
92 See N. Va. Hemp & Ag. LLC v. Virginia, 125 F.4th 472, 492, 496 (4th Cir. 2025); Bio Gen LLC v. Sanders, — F.4th
—, 2025 WL 1740322, *3–5 (8th Cir. June 24, 2024).
93 N. Va. Hemp & Ag. LLC, 125 F.4th at 483; Bio Gen LLC, 2025 WL 1740322, *1–2. Two district court decisions in
cases challenging legislation from New Jersey and Wyoming are currently on appeal before other federal appellate
courts. See Loki Brands LLC, 2024 WL 4457485 at *3–4; Green Room LLC, 2024 WL 3817820 at *1–2.
94 21 U.S.C. §§ 801–904.
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THC.95 THC is separately classified as a Schedule I controlled substance, unless an exception
applies.96 Similar to the statutory definition of marijuana, DEA regulations exclude hemp from the
classification of THC as a Schedule I controlled substance, based on the 2018 farm bill
exemption.97 Schedule I controlled substances are subject to the most stringent federal substance
controls, and prohibited acts associated with the substances may give rise to severe criminal
penalties.98 Substances not regulated under the CSA may still be subject to other federal
regulatory schemes, such as the Federal Food, Drug, and Cosmetic Act.99
In addition to the federal CSA, each state has its own controlled substance laws.100 State
substance control laws often roughly mirror federal law, and such laws are relatively uniform
across states, because many states have adopted versions of a model statute called the Uniform
Controlled Substances Act.101 Through state controlled substance laws, states have sometimes
opted to impose state laws that are either more or less strict than those of the CSA.102 Relevant
here, some states have amended their controlled substance laws to prohibit certain products that
may be considered hemp under federal law.103
Preemption
Federal preemption is the doctrine that federal law supersedes certain conflicting state laws.104
The Constitution’s Supremacy Clause, which provides that federal law is “the supreme Law of
the Land,” is the basis for this doctrine.105 A principle that guides courts’ preemption analysis is
the intent of Congress, which is “the ultimate touchstone” of preemption analysis.106 The
Supreme Court has at times also used a canon of construction called “the presumption against
95 7 U.S.C. § 1639o(1); 21 U.S.C. § 802(16).
96 21 C.F.R. § 1308.11(d)(31) (2025).
97 Id.
98 See 21 U.S.C. § 841.
99 See 7 U.S.C. § 1639r(c) (“Nothing in this subchapter shall affect or modify . . . the Federal Food, Drug, and Cosmetic
Act[.]”).
100 See CRS Legal Sidebar LSB10482, State Marijuana “Legalization” and Federal Drug Law: A Brief Overview for
Congress, by Joanna R. Lampe (2024).
101 Controlled Substances Act, UNIFORM LAW COMMISSION, https://www.uniformlaws.org/committees/communityhome?CommunityKey=9873a9bf-7335-4be7-855d-b17c9e8ff3dd (last visited Jan. 6, 2025).
102 See LAMPE, supra at note 100.
103 See VA. CODE ANN. § 3.2-4112 (2023) (“‘Hemp product’ means a product . . . that . . . when offered for retail sale
. . . contains a total tetrahydrocannabinol concentration of no greater than 0.3 percent . . .”); id. § 4.1-600 (2023)
(defining marijuana for purposes of the Cannabis Control Act as any part of the cannabis plant, including hemp
products as defined in § 3.2-4112, subject to certain exceptions); id. § 4.1-1116 (2023) (criminalizing the advertising of
marijuana); id. § 4.1-1108 (2021) (criminalizing the consumption of marijuana in any public place); id. § 4.1-1100
(2023) (criminalizing the possession of more than one ounce of marijuana); id. § 18.2-248.1 (2020) (criminalizing the
sale of marijuana); see also ARK. CODE ANN. § 5-64-215(a)(5)(A)(i) (2023) (including on Schedule VI “[a] product
derived from industrial hemp that was produced as a result of a synthetic chemical process that converted the industrial
hemp or a substance contained in the industrial hemp into delta-8, delta-9, delta-6a,10a, or delta-10
tetrahydrocannabinol including their respective acetate esters; and [ ] any other psychoactive substance derived
therein”); id. § 5-64-419(b)(5) (2021) (criminalizing the possession of Schedule VI controlled substances).
104 For more information on the federal preemption doctrine, see CRS Report R45825, Federal Preemption: A Legal
Primer, by Bryan L. Adkins, Alexander H. Pepper, and Jay B. Sykes (2023).
105 U.S. CONST. art. VI, cl. 2; see also ArtVI.C2.3.4 Modern Doctrine on Supremacy Clause, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/artVI-C2-3-4/ALDE_00013402/ (last visited Jan. 10,
2025).
106 ArtVI.C2.3.4 Modern Doctrine on Supremacy Clause, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artVI-C2-3-4/ALDE_00013402/ (last visited Jan. 10, 2025).
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preemption,” which instructs that federal law should not be read to preempt laws involving the
states’ historic police powers107 unless that was clearly intended by Congress.108
Federal law can preempt state law through two types of preemption: express and implied. Express
preemption applies when a federal provision expressly states that it intends to prohibit certain
state regulation.109 Federal law impliedly preempts state law when the intent to preempt is
implicit in the federal law’s structure and purpose.110 Conflict and field preemption are the two
types of implied preemption. Conflict preemption is a doctrine under which federal law takes
precedence over conflicting state laws.111 Such a conflict exists when it is impossible to comply
with both state and federal law, or where the state law stands as an obstacle to the
accomplishment of the full purposes of Congress.112 Field preemption occurs when a pervasive
scheme of federal regulation demonstrates that Congress has a desire to occupy the entire field of
regulation.113
The 2018 farm bill contains two provisions relevant to state regulation of products legally
considered hemp under the 2018 farm bill. The first provision expressly preempts states from
regulating “the transportation or shipment of hemp or hemp products . . . through the State.”114
The second clause is a savings clause that limits federal preemption—allowing states to be more
(but not less) stringent than the 2018 farm bill. That second provision states that “[n]othing [in the
2018 farm bill] preempts or limits any law of a State . . . that . . . regulates the production of
hemp; and . . . is more stringent than [the 2018 farm bill].”115
Dormant Commerce Clause
The Constitution’s Commerce Clause empowers Congress to pass federal laws “to regulate
Commerce . . . among the several States.”116 The Supreme Court has interpreted this clause to
prohibit state laws that unduly restrict interstate commerce.117 This doctrine, sometimes called the
Dormant Commerce Clause, “prevents the States from adopting protectionist measures and thus
preserves a national market for goods and services.”118 The Supreme Court has identified two
primary principles that limit a state’s authority to regulate interstate commerce: (1) state laws may
107 The Supreme Court uses the term “police power” to refer to the states’ general power of governing, such as
regulating to promote public health, safety, and welfare. See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519,
536 (2012) (“Our cases refer to this general power of governing, possessed by the States but not by the Federal
Government, as the ‘police power.’” (quoting United States v. Morrison, 529 U.S. 598, 618–19 (2000))).
108 Id. In a 2016 decision, the Supreme Court declined to apply the presumption against preemption in a case dealing
with express preemption, signaling that the doctrine applies only in implied preemption cases. See Puerto Rico v.
Franklin Cal. Tax-Free Tr., 579 U.S. 115, 125 (2016).
109 See Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008).
110 See Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992).
111 Id. at 108.
112 Arizona v. United States, 567 U.S. 387, 399 (2012).
113 Id. at 401 (“Where Congress occupies an entire field, as it has in the field of alien registration, even complementary
state regulation is impermissible.”).
114 7 U.S.C. § 1639o note.
115 Id. § 1639p(a)(3)(A).
116 U.S. CONST. art. I, § 8, cl. 3; see also Artl.S8.C3.7.1 Overview of Dormant Commerce Clause, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/artI-S8-C3-7-1/ALDE_00013307/ (last visited Dec. 2,
2024).
117 Artl.S8.C3.7.1 Overview of Dormant Commerce Clause, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artI-S8-C3-7-1/ALDE_00013307/ (last visited Dec. 2, 2024).
118 Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 588 U.S. 504, 514 (2019).
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not discriminate against interstate commerce, and (2) states may not impose undue burdens on
interstate commerce.119 State laws that discriminate against out-of-state goods or nonresident
economic actors can be sustained only if they are “narrowly tailored to ‘advanc[e] a legitimate
local purpose.’”120 On the other hand, state laws that “regulat[e] even-handedly to effectuate a
legitimate local public interest” are generally upheld unless the burden on interstate commerce “is
clearly excessive in relation to the putative local benefits.”121
Virginia
In 2023, the Commonwealth of Virginia enacted SB 903 to address the sale of hemp products
with total THC concentrations that exceed 0.3%.122 SB 903 amended its statutory definition of a
“hemp product” to include a 0.3% limitation on the “total tetrahydrocannabinol concentration.”123
After this amendment, products containing more than 0.3% total THC were considered marijuana
rather than hemp, thus subjecting the recreational advertising, public consumption, and
possession over a certain amount of such products to potential criminal penalties.124 For example,
after the passage of SB 903, advertising, public consumption, or possession over a certain amount
of a product with 0.1% delta-9 THC and 0.4% delta-8 THC would be a criminal offense under
Virginia law.125 SB 903 also prohibited those registered to process hemp126 from selling hemp if
they knew or had reason to know that the buyer will use the hemp in a substance that contains a
total THC concentration exceeding 0.3%.127
Hemp retailers and a hemp consumer filed suit against Virginia state officials, requesting a
preliminary injunction that would prevent the state from enforcing SB 903 during the litigation.128
The plaintiffs argued that they were likely to succeed on the merits of their claims that SB 903
violated the Dormant Commerce Clause and was expressly preempted by the 2018 farm bill.129
119 South Dakota v. Wayfair, Inc., 585 U.S. 162, 173 (2018).
120 Tenn. Wine & Spirits Retailers Ass’n, 588 U.S. at 518 (quoting Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328, 338
(2008)).
121 Wayfair, 585 U.S. at 173 (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).
122 S.B. 903, 2023 Gen. Assemb., Reg. Sess. (Va. 2023).
123 VA. CODE ANN. § 3.2-4112 (2023) (“‘Hemp product’ means a product . . . that . . . when offered for retail sale . . .
contains a total tetrahydrocannabinol concentration of no greater than 0.3 percent . . .”).
124 Id. § 4.1-600 (2023) (defining marijuana for purposes of the Cannabis Control Act as any part of the cannabis plant,
excluding hemp products as defined in § 3.2-4112, subject to certain exceptions); id. § 4.1-1116 (2023) (criminalizing
the advertising of marijuana); id. § 4.1-1108 (2021) (criminalizing the consumption of marijuana in any public place);
id. § 4.1-1100 (2023) (criminalizing the possession of more than one ounce of marijuana); id. § 18.2-248.1 (2020)
(criminalizing the sale of marijuana). On the other hand, Virginia has legalized medical marijuana. See id. § 4.1-1601
(2024).
125 Id. § 4.1-600 (2023) (defining marijuana for purposes of the Cannabis Control Act as any part of the cannabis plant,
excluding hemp products as defined in § 3.2-4112, subject to certain exceptions); id. § 4.1-1116 (2023) (criminalizing
the advertising of marijuana); id. § 4.1-1108 (2021) (criminalizing the consumption of marijuana in any public place);
id. § 4.1-1100 (2023) (criminalizing the possession of more than one ounce of marijuana); id. § 18.2-248.1 (2020)
(criminalizing the sale of marijuana).
126 Under Virginia law, a person who is not federally licensed to process hemp must obtain a state registration before
growing, handling, or processing hemp in Virginia. See VA. CODE ANN. § 3.2-4116(A) (2023).
127 Id. § 3.2-4116(C) (2023).
128 N. Va. Hemp & Ag. LLC v. Virginia, 700 F. Supp. 3d 407, 416 (E.D. Va. 2023), aff’d in part, vacated in part, 125
F.4th 472 (4th Cir. 2025).
129 Id.
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The district court denied the motion for preliminary injunction.130 The plaintiffs appealed this
decision to the Fourth Circuit.131
On appeal, the plaintiffs argued that the 2018 farm bill expressly preempts SB 903 because
Virginia’s law impeded interstate commerce in products that are federally considered hemp and
because the 2018 farm bill prevented states from prohibiting the transportation or shipment of
hemp or hemp products.132 The defendants responded by arguing that the 2018 farm bill
preempted only state laws that prohibited the transportation or shipment of hemp or hemp
products through the state and not their sale or possession.133 As evidence that the express
preemption provision should be interpreted narrowly, the defendants pointed to the 2018 farm
bill’s savings clause, which expressly permitted states to regulate the production of hemp more
stringently than federal regulation.134 The plaintiffs in turn argued that the district court erred in
relying on this savings clause because it allowed states to impose “more stringent” regulations
pertaining to “the production of hemp” and did not apply to the sale or possession of hemp.135
The Fourth Circuit affirmed the district court’s determination that the plaintiffs did not show a
likelihood of success on the merits on their express preemption claim.136 The court reasoned that
the 2018 farm bill did not say anything about states’ ability to regulate hemp within their
borders.137 To the contrary, it authorized states to impose “more stringent” regulations on hemp
production.138 The court reasoned that even though the provision allowing “more stringent
regulation” explicitly mentions the production of hemp and not its possession or sale, “silence
cannot constitute express preemption.”139
The plaintiffs also appealed the district court’s Dormant Commerce Clause determination.140 They
challenged the portion of SB 903 that prohibited those registered to process hemp from selling it
if they know or have reason to know that the buyer will use the hemp in a substance that contains
a total THC concentration exceeding 0.3%.141 According to the plaintiffs, this sales restriction
prevented Virginia hemp processors from selling their raw, federally compliant product to out-ofstate buyers “since no other state has that standard.”142 They contended that the restriction
discriminated against out-of-state buyers because it would effectively forbid out-of-state buyers
130 Id. at 412–13.
131 Notice of Appeal, N. Va. Hemp & Ag. LLC v. Virginia, 700 F. Supp. 3d 407 (E.D. Va. 2023) (No. 1:23-CV-01177),
ECF No. 74.
132 Opening Brief of Appellants at 17, N. Va. Hemp & Ag. LLC v. Virginia, 125 F.4th 472 (4th Cir. 2025) (No. 232192), ECF No. 16–17 (citing 7 U.S.C. § 1639o note).
133 Response Brief of Appellees at 31–36, N. Va. Hemp & Ag. LLC v. Virginia, 125 F.4th 472 (4th Cir. 2025) (No. 232192), ECF No. 24.
134 Id. at 35 (“The Farm Act’s savings clause provides that it does not ‘preempt[] or limit[] any law of a State’ that
‘regulates the production of hemp’ and is ‘more stringent’ than federal law.” (quoting 7 U.S.C. § 1639p(a)(3)(A)). See
7 U.S.C. § 1639p(a)(3)(A) (“Nothing in this subsection preempts or limits any law of a State or Indian tribe that— (i)
regulates the production of hemp; and (ii) is more stringent than this subchapter.”).
135 Opening Brief of Appellants at 18–20, N. Va. Hemp & Ag. LLC v. Virginia, 125 F.4th 472 (4th Cir. 2025) (No. 232192), ECF No. 17.
136 N. Va. Hemp & Ag. LLC v. Virginia, 125 F.4th 472, 494 (4th Cir. 2025).
137 Id.
138 Id. (quoting 7 U.S.C. § 1639p(a)(3)(A)).
139 Id.
140 Id. at 496–97.
141 Opening Brief of Appellants at 28, N. Va. Hemp & Ag. LLC v. Virginia, 125 F.4th 472 (4th Cir. 2025) (No. 232192), ECF No. 17.
142 Id.
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from accessing Virginia hemp and did not withstand heightened scrutiny.143 The defendants
responded that SB 903 is not discriminatory since it applied to all hemp regardless of whether it
came from within the state or outside the state.144 The defendants argued that SB 903 was not
intended to benefit in-state economic interests and that any effect on interstate commerce was
merely incidental and thus permissible.145
The Fourth Circuit held that SB 903 does not discriminate against out-of-state interests because it
applied to in-state and out-of-state buyers alike.146 The court further held that the law does not
unjustifiably burden interstate commerce, and therefore it affirmed the district court’s
determination that the plaintiffs failed to establish a likelihood of success on their Dormant
Commerce Clause claim.147 The court affirmed the lower court’s denial of a preliminary
injunction because the plaintiffs did not show they were likely to succeed on the merits of their
challenge to SB 903.148 Because this was a decision on a motion for a preliminary injunction, the
case was remanded to the district court for further proceedings on the merits.149
Arkansas
In 2023, the State of Arkansas enacted Act 629, a law that criminalized the growth, sale, transfer,
or possession of certain products made from “industrial hemp.”150 Specifically, the state law
criminalized those activities for any product that was “derived from industrial hemp that was
produced as a result of a synthetic chemical process that converted the industrial hemp or a
substance contained in the industrial hemp into delta-8 [THC], delta-9 [THC], delta-6a,10a
[THC], or delta-10 [THC]” as well as “[a]ny other psychoactive substance derived therein.”151
Act 629 criminalized the recreational use of these products by adding them to Arkansas’s list of
Schedule VI controlled substances under its controlled substances law, which roughly mirrors the
CSA.152
Hemp growers and retailers filed a lawsuit seeking a declaration that the Arkansas law did not
prevent them from growing and selling their products and an injunction stopping Arkansas
officials from enforcing the law against them.153 The plaintiffs also sought a preliminary
143 Id. at 30.
144 Response Brief of Appellees at 53–55, N. Va. Hemp & Ag. LLC v. Virginia, 125 F.4th 472 (4th Cir. 2025) (No. 23-
2192), ECF No. 24.
145 Id.
146 N. Va. Hemp & Ag. LLC v. Virginia, 125 F. 4th 472, 496 (4th Cir. 2025).
147 Id. at 497–98.
148 Id. The Fourth Circuit reversed the district court’s order partially denying a motion to dismiss on the ground that the
plaintiffs lacked standing to challenge SB 903’s restriction on Virginia processors selling of hemp to someone who will
use it to exceed the total THC standard because none of the plaintiffs were licensed Virginia processors. Id. at 488–91.
149 Preliminary Injunction, Black’s Law Dictionary (12th ed. 2024).
150 2023 Ark. Acts 629 (S.B. 358). The terms industrial hemp and hemp are sometimes used interchangeably. See CRS
Report R44742, Defining Hemp: A Fact Sheet, by Renée Johnson (2019).
151 ARK. CODE ANN. § 5-64-215(a)(5)(A)(i)(i)–(j) (2023). Delta-6a10a is a mildly psychoactive cannabinoid that is
present in the cannabis plant in trace amounts. See Nina Julia, What Is Delta-6a10a THC?, THE CENTER FOR
ADVANCING HEALTH (Nov. 3, 3023), https://cfah.org/delta-6a10a-thc/; see also ARK. CODE ANN. § 5-64-419(b)(5)
(2021) (criminalizing possession of a Schedule VI controlled substance).
152 See ARK. CODE ANN. § 5-64-215(a)(1)–(2). Marijuana and THC are also separately scheduled as Schedule VI
controlled substances. Id. Arkansas amended its constitution to legalize medical marijuana under state law. See ARK.
CONST. OF 1874, Amend. 98 § 3 (2016).
153 Bio Gen LLC v. Sanders, 690 F. Supp. 3d 927, 933–34. (E.D. Ark. 2023) rev’d in part, vacated in part, No. 233237, 2025 WL 1740322 (8th Cir. 2025).
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injunction, which would preclude the Arkansas officials from enforcing Act 629 while the lawsuit
is pending.154 In support of the motion for preliminary injunction, the hemp industry plaintiffs
argued that they were likely to succeed on the merits of their claims that the 2018 farm bill
preempted Act 629 and that Act 629 violated the Due Process Clause.155 The district court
determined that the preliminary injunction was warranted.156
The Arkansas officials appealed the district court’s order granting the preliminary injunction to
the U.S. Court of Appeals for the Eighth Circuit.157 They argued that the 2018 farm bill expressly
preempts only laws that prohibit the transportation or shipment of hemp or hemp products
through the state and that Act 629 does not run afoul of this provision because it includes an
exception allowing “the continuous transportation through Arkansas” of hemp.158 The hemp
industry plaintiffs countered that the provision is not an effective exception for interstate
commerce because “continuous transportation” is an undefined term that likely would not include
temporary stops by a transporter within Arkansas, for example, for gas or overnight lodging.159
The Eighth Circuit concluded that the 2018 farm bill does not preempt Act 629 because the term
“continuous exception” has been interpreted by federal caselaw such that “a ‘temporary pause’
does not remove a shipment from continuous interstate commerce: as long as there is a ‘practical
continuity of movement.’”160 The court predicted that the Arkansas Supreme Court would adopt
this interpretation and therefore concluded that the “continuous transportation” provision allows
for hemp to be transported in interstate commerce.161
The court also considered whether the plaintiffs were likely to succeed on their claim that the
2018 farm bill impliedly preempted Act 629 by standing “as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress.”162 The hemp industry plaintiffs
argued that Congress intended to “federally protect hemp” and to mandate its nationwide legality,
which intent is thwarted by Act 629’s criminalization of the possession of certain cannabis
products that are considered hemp by the 2018 farm bill.163 The Eighth Circuit rejected this
argument, determining instead that the text and structure of the 2018 farm bill shows that
Congress wanted only to “facilitate state legalization of hemp, if a state wants to,” and to “ensure
other states do not become a hurdle to an in-state hemp industry (if the state chooses to legalize
hemp).”164 The court explained: “[J]ust because states may legalize hemp under the 2018 Farm
Bill does not mean they must.”165
The Eighth Circuit likewise disagreed with the district court’s conclusion that the hemp industry
plaintiffs were likely to succeed on the merits of their claim that Act 629 violated the Due Process
154 Id. at 932.
155 Memorandum in Support of Motion for Preliminary Injunction at 15–17, 21–22, Bio Gen LLC v. Sanders, 690 F.
Supp. 3d 927 (E.D. Ark. 2023) (4:23-CV-00718), ECF No. 3.
156 Bio Gen LLC, 690 F. Supp. 3d at 941.
157 Bio Gen LLC v. Sanders, No. 23-3237, 2025 WL 1740322, at *1 (8th Cir. June 24, 2024).
158 Opening Brief of Appellants at 34-36, Bio Gen LLC v. Sanders, No. 23-3237, 2025 WL 1740322 (8th Cir. June 24,
2024) (citing 7 U.S.C. § 1639o note); ARK. CODE ANN. § 5-64-215(d).
159 Appellee’s Brief at 47-49, Bio Gen LLC v. Sanders, No. 23-3237, 2025 WL 1740322, at *42–44 (8th Cir. June 24,
2024).
160 Bio Gen LLC, 2025 WL 1740322, at *4 (quoting Walling v. Jacksonville Paper Co., 317 U.S. 564 (1943)).
161 Id.
162 Id. (quoting Arizona v. United States, 567 U.S. 387, 399 (2012)).
163 Appellee’s Brief at 47-49, Bio Gen LLC v. Sanders, No. 23-3237, 2025 WL 1740322, at *27–34 (8th Cir. June 24,
2024).
164 Bio Gen LLC, 2025 WL 1740322, at *5.
165 Id.
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Clause of the Constitution because the terms “continuous transportation,” “synthetic substance,”
and “psychoactive substance” as used in the Act were vague.166 A law may violate the Due
Process Clause if it either forbids or requires an act “in terms so vague that men of common
intelligence must necessarily guess at its meaning.”167 These kinds of laws fail to give “adequate
guidance” regarding what conduct would violate the law to those who would be law-abiding or
fail to provide clear standards that invite “arbitrary enforcement.”168 The appellate panel
determined that these provisions were not vague because “continuous transportation” is welldefined in federal law,169 and “synthetic substance” is defined by an exhaustive list in the
Arkansas Code.170 The panel also determined that “psychoactive substances” is not so vague as to
render Act 629 unconstitutional because “its proximity to ‘synthetic substance’ gives it sufficient
meaning.”171
Because the Eighth Circuit disagreed that the plaintiffs were likely to succeed on the merits of
their claims, it vacated the preliminary injunction and remanded the case for further proceedings
to resolve the merits of the plaintiffs’ claims.172
Considerations for Congress
In light of the uncertainty and disagreement over the 2018 farm bill’s hemp definition and the rise
of certain THC products, Congress may consider whether to revise its definition as to which
cannabinoid products are excluded from the definition of marijuana under the CSA. Congress has
previously considered amending this definition. For example, the House FY2026 Agriculture
Appropriations Draft Bill includes a provision that would redefine hemp to include the cannabis
plant and all derivatives with a total THC concentration of not more than 0.3%.173 A similar
change was previously proposed in a version of the farm bill174 introduced in the Senate during
the 118th Congress (S. 5335).175 An amendment to a House version of the farm bill176 also
suggested this change.177 Such an amendment would consider all THC for the purposes of legally
166 Id. at *5–6.
167 Id. (quoting Connally v. Gen. Const. Co., 269 U.S. 385, 391 (1926)).
168 Amdt5.8.1 Overview of Void for Vagueness Doctrine, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt5-8-1/ALDE_00013739/ (last visited Feb. 12, 2025).
169 Bio Gen LLC, 2025 WL 1740322 at *4.
170 Id. at *5–6 (citing ARK. CODE ANN. § 5-64-215(a)(5)).
171 Id. (citing Cir. City Stores v. Adams, 532 U.S. 105, 138 (2001) (“Like those other courts, this Court sees the
sequence as an occasion to apply the interpretive maxim of ejusdem generis, that is, when specific terms are followed
by a general one, the latter is meant to cover only examples of the same sort as the preceding specifics.”).
172 Id. at *7; see Preliminary Injunction, Black’s Law Dictionary (12th ed. 2024).
173 H.R. __ § 759, 119th Cong. (Draft June 4, 2025),
https://docs.house.gov/meetings/AP/AP01/20250605/118353/BILLS-119-SC-AP-FY2026-AgricultureFY26AgricultureSubcommittee.pdf#page=113.
174 The farm bill is an omnibus, multiyear law that has typically been renewed about every five years since the 1930s.
See CRS In Focus IF12047, Farm Bill Primer: Background and Status, by Jim Monke and Renée Johnson (2024).
Congress wrote the 2018 farm bill to cover five years through FY2023 and the 2023 crop year. See The Agriculture
Improvement Act of 2018, Pub. L. No. 115-334, 132 Stat. 4490 (2018). In November 2023, Congress enacted a oneyear extension to cover through the end of 2024. See Further Continuing Appropriations and Other Extensions Act,
Pub. L. No. 118-22, 137 Stat. 112 (2024). In December 2024, Congress enacted another one-year extension. See
American Relief Act, Pub. L. No. 118-158, 38 Stat. 1722 (2025).
175 Rural Prosperity and Food Security Act of 2024, S. 5335, 118th Cong. § 10016(1)(A) (2024).
176 See Farm, Food, and National Security Act of 2024, H.R. 8467, 118th Cong. (2024).
177 AMENDMENT TO H.R. 8467 OFFERED BY MRS. MILLER OF ILLINOIS (May 22, 2024),
https://docs.house.gov/meetings/AG/AG00/20240523/117371/BILLS-118-HR8467-M001211-Amdt-35.pdf.
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determining what is hemp and what is marijuana. This change would bring certain THC products
back under the CSA and DEA regulation that are currently considered to be hemp or are in an
uncertain area of regulation.
Congress could also consider other amendments to the hemp definition. For example, it could
adopt DEA’s interpretation that “synthetically derived” THC remains a Schedule I controlled
substance. Using the term “synthetically derived” may raise new questions as to what Congress
means by synthetic, unless it were clearly defined. How it would be defined would affect which
products would be regulated by the CSA. Congress could also allow agency and judicial
interpretations to play out without congressional intervention.
In light of different judicial interpretations of the scope of the 2018 farm bill’s preemption clause,
Congress could also consider amending the express preemption provision to clarify which state
laws are preempted. Legal challenges to a New Jersey law and a Wyoming law that restricts
certain THC products are pending in the U.S. Circuit Courts of Appeals for the Third Circuit and
Tenth Circuit, respectively.178 Clarification of the scope of the 2018 farm bill’s preemption clause
may affect the outcome of these lawsuits and may affect a state’s ability to regulate certain THC
products. To the extent Congress seeks to allow states to ban certain hemp products entirely,
Congress could clarify that states may regulate the possession, use, or sale of hemp more
stringently than the farm bill does; currently, the savings clause provision refers only to the
production of hemp.179 To the extent Congress would prefer to limit the states’ power to ban these
substances, Congress could clarify the laws it seeks to preempt.
Congress may also consider marijuana’s status under the CSA, which would affect how
cannabinoid products that are not deemed to be hemp would be regulated.180 Either Congress or
the executive branch has the authority to change the status of marijuana.181 Congress can change
the status of a controlled substance through legislation, while the CSA empowers DEA to make
scheduling decisions through the notice-and-comment rulemaking process.182 DEA is currently
considering whether to reschedule marijuana from Schedule I to Schedule III via formal
rulemaking.183 Legislation was introduced in the 118th Congress that would have removed
marijuana from regulation under the CSA.184
178 Notice of Appeal at 1–2, Loki Brands, LLC v. Platkin, No. 24-9389 (D.N.J. Oct. 10, 2024), ECF No. 21; Notice of
Appeal, Green Room LLC v. Wyoming, No. 24-CV-128 (D. Wyo. July 19, 2024), ECF No. 34; see also Amended
Notice of Appeal, Green Room LLC v. Wyoming, No. 24-CV-128 (D. Wyo. July 19, 2024), ECF No. 41.
179 7 U.S.C. § 1639p(a)(3)(A) (“Nothing . . . preempts or limits any law of a State . . . that . . . regulates the production
of hemp; and . . . is more stringent than [the 2018 farm bill].”).
180 For more information on the legislative scheduling of controlled substances, see CRS In Focus IF12709, Legislative
Scheduling of Controlled Substances, by Joanna R. Lampe (2024).
181 CRS Legal Sidebar LSB11105, Legal Consequences of Rescheduling Marijuana, by Joanna R. Lampe (2024).
182 Id. (citing 21 U.S.C. § 811(a)).
183 Schedules of Controlled Substances: Rescheduling of Marijuana, 89 Fed. Reg. 44597, 44597 (May 21, 2024) (notice
of proposed rulemaking).
184 States Reform Act of 2023, H.R. 6028, 118th Cong. (2023).
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Author Information
Dorothy C. Kafka
Legislative Attorney
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.