Federal cannabis policy has always been a mess. When I say “always”, I’m looking back 90 years or so, beginning with the Marihuana Tax Act of 1937, then skipping ahead to the Controlled Substances Act, the Rohrbacher-Farr Amendment, the 2014 Farm Bill, and the 2018 Farm Bill—not to mention the various awkward and occasionally incoherent positions the feds have taken and abandoned, formally and informally, in response to state-led cannabis efforts.
All of that said, today’s iteration of federal cannabis policy — if you can call it that — is the weirdest, most confusing iteration we have seen.
Legislation: the hempnoids ban
Last week, Congress banned intoxicating hemp products by redefining “hemp”, effective November 2026. This caught a lot of people by surprise. That said, the purported “loophole” that triggered proliferation of these products was more an article of faith than a fair reading of the law, in my opinion, and proposals like the Miller Amendment had been batted around for a while. In addition, many of these products weren’t legal under the Food Drug & Cosmetic Act, regardless.
Did Congress do a good job with this, though? The early verdict is no, it didn’t. We now have a convoluted regime of exclusions to exclusions, definitions forthcoming, and potential workarounds spotted. The one-year runway associated with the new law is also being viewed by many, idealistically, as a reprieve where this hempnoids ban can somehow be negotiated and reversed, via a Farm Bill renewal, extension, or in some other manner. Mess.
Administrative action: marijuana rescheduling
This is apparently on ice, although Trump himself claimed in August that a decision would be made in “the next few weeks.” Last week, we were told review is still “ongoing.” (Trump endorsed rescheduling on the 2024 campaign trail, for what it’s worth.) In any case, the stalled rescheduling process was misguided, as we’ve said so many times here on the blog, and it was going poorly when things petered out. As it stands, marijuana remains in Schedule I.
We hear a lot of scuttlebutt from larger clients, and from folks in the unsavory business of government affairs. These include players “paying homage” as they say, down at Mar-a-Lago, funneling money into PACs, and any number of things. As with the hempnoids ban, though, if anyone says they know what is happening next on marijuana rescheduling, I’m inclined to doubt them. Nobody knows. Not even the people driving the bus.
Federal enforcement (or not)
Nobody knows what’s going on with this either. The Justice Department (DOJ) isn’t enforcing federal cannabis prohibition in the context of state marijuana programs, and never really has. The FDA isn’t enforcing the Food, Drug & Cosmetics Act with respect to hemp-CBD products, and never really has. Really, the main thrust of U.S. drug policy these days seems to be blowing up boats in the Caribbean Sea (20 boats and counting).
Back to cannabis, one federal prosecutor, Darin Smith, just announced that his office would ramp up prosecution of misdemeanor marijuana offenses on federal lands — which sounds like a great use of resources — pursuant to a new Justice Department policy issued in September. Most of us haven’t seen that policy, although I’m sure Mr. Smith’s announcement has prompted a handful of FOIA requests. Other DOJ prosecutors have remained silent.
As far as the intoxicating hemp products ban, it’s too early to tell if there will be any enforcement, assuming the prohibition sticks. That may well be another area where states are left in a limbo of sorts.
Litigation: mixed messages
Yesterday, the DOJ declined to file a Supreme Court brief in the Canna Provisions case, which I’ve called “the lawsuit to end federal cannabis prohibition that wouldn’t really end federal cannabis prohibition.” In other words, the Trump administration isn’t taking a position on whether it should be allowed to enforce its laws against intrastate — and not interstate – cannabis activity. (The First Circuit held that it should be allowed to enforce those laws.)
The DOJ’s position is curious, given that 1) the case strikes at the heart of the federal government’s ability to enforce federal laws, and 2) the federal government has been keen to weigh in on Supreme Court cannabis litigation, in the context of gun rights. As it stands, the Court will now decide whether to hear this case without executive branch input. Whatever…
The last word on federal cannabis policy
The state of federal cannabis policy is as contradictory, confusing and dynamic as ever. The legal-political environment arises from a century-long mashup of prejudice and incompetence, without credible regard to science, public health or economic considerations.
Will things improve headed into 2026? Nobody knows. By way of example, here are three momentous questions that no one can answer:
- Will the federal government change the control status of marijuana?
- Will the federal government enforce federal laws, or any of them, in respect of the cannabis plant?
- Will Congress pass a Farm Bill next year, or extend provisions relevant to the cannabis plant?
The answer to each of those questions has profound commercial and public health implications. It is difficult, maybe impossible, to imagine another commodity subject to such uncertainty. For that reason, my guess is that most of the cannabis industry will continue to do what it always has: ignore the federal regime and simply carry on.
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