Griffith Wants Hemp Rules in a Tax Bill Before Dec. 11. His Ticket In Is 8 Cents a Milligram

On Monday, October 26, a week before the midterm elections, Rep. Morgan Griffith of Virginia presided over a pro forma session of the House, the kind of brief sitting the chamber holds when it is not doing legislative business. Afterward he told reporters what he wanted from the weeks after the election, and it was about hemp. "I think we need to get my THC regulatory bill passed," he said, "and if we could get that into a reconciliation bill before the 11th of December, that'd be fabulous." (S1)

December 11 is the day most of the federal ban on intoxicating hemp products takes effect. Griffith, a Republican who chairs the Energy and Commerce health subcommittee, has argued since January that the Food and Drug Administration should regulate these products rather than Congress banning them. What was new on Monday was the vehicle. He was proposing to fold hemp regulation into a budget reconciliation package, the one kind of legislation the Senate cannot filibuster. (S1, S3)

He knew whom he would have to get past. "I get it. Andy Harris, Ted Budd, some of the others, they just want to stop it," he said, naming a Maryland congressman and a North Carolina senator. Then he made his case in one breath: products that are third-party tested, age-restricted, regulated the way some states already do it, or nothing. "If you're going to look at it from a federal level," he said, "I don't think we can stop it." (S1)

In a statement later, Griffith added the condition that turns the idea from a wish into a plan. His bill could ride in reconciliation, he said, if it were "combined with a measure related to taxes on hemp-derived products, such as Rep. Van Duyne's Beverage Regulatory Parity Act." Reconciliation exists to change spending and revenue. A regulatory framework has to bring a tax with it to get through the door, and the tax he pointed to is written into the text of a bill introduced in August: 8 cents for every milligram of intoxicating THC in a hemp drink. (S1, S5)

Section 781 of the agriculture spending law President Donald Trump signed on November 12, 2025, rewrote the federal definition of hemp to count total THC, including THCA, and to exclude any finished hemp-derived cannabinoid product holding more than 0.4 milligrams of total THC and similar cannabinoids per container. Most of that takes effect December 11, after a stopgap spending law Congress passed on September 2 pushed it back from November 12. Products over the line become marijuana under the Controlled Substances Act. Griffith has about six weeks, a lame-duck session and a procedural rule written to keep exactly this kind of policy out of budget bills. (S3, S7)

Griffith's bill is H.R. 7212, the Hemp Enforcement, Modernization, and Protection Act, which he introduced on January 22 with Rep. Marc Veasey, a Texas Democrat. Its text gives the FDA 60 days to propose limits on cannabinoid content and three years to finalize them. If the agency misses that deadline, the bill writes in its own defaults: 5 milligrams of intoxicating cannabinoids per serving and 30 milligrams per package for products taken by mouth. It sets a minimum sale age of 21, orders uniform manufacturing and testing requirements, requires facility registration and product listing, and bans packaging that imitates candy, fruit, cartoons or other imagery aimed at anyone under 21. (S2, S3)

The bill has seven cosponsors, four Democrats and three Republicans. Congress.gov lists one action on it in nine months: its referral to the Energy and Commerce Committee on the day it was introduced. Griffith chairs one of that committee's subcommittees, and his bill has still not had a markup. Reconciliation is, among other things, a way around that. (S4)

The tax that would carry it belongs to H.R. 10079, the Beverage Regulatory Parity Act, introduced August 10 by Rep. Beth Van Duyne, a Texas Republican, and Rep. Greg Landsman, an Ohio Democrat, and referred to both Energy and Commerce and Ways and Means. It takes a narrower route than Griffith's bill. It exempts qualifying hemp drinks from section 781's per-container cap and moves them into the alcohol model: a three-tier system of permitted manufacturers, wholesalers and retailers, regulated by the Treasury Department's Alcohol and Tobacco Tax and Trade Bureau. A serving is 12 fluid ounces for a single can, or 1.5 fluid ounces from a 750-milliliter bottle. Each serving may hold no more than 5 milligrams of intoxicating THC, and every milligram is taxed at 8 cents when the drink leaves the manufacturer. (S5, S6)

At the can level the arithmetic is small: 40 cents of federal tax on a full-strength 5-milligram seltzer. It gets larger in the bottle. A 750-milliliter bottle holds about 17 servings at 1.5 ounces each, which under the Van Duyne bill could mean more than 80 milligrams of THC in a single container, against a federal limit of 0.4 milligrams once December 11 arrives. (S5, S7)

The rule standing in the way is named for Robert Byrd. Under it, any senator can strike a provision from a reconciliation bill as extraneous, and one test of extraneousness is whether the provision's effect on spending or revenue is "merely incidental" to its policy. The Congressional Research Service calls that a test of relativity, and notes that a provision with real fiscal effects can still fail it if its policy effects are larger. An FDA regulatory framework with a beverage excise attached is close to a textbook case for that argument. The Senate parliamentarian advises on those calls in a review staff call the Byrd bath, and overriding the rule takes 60 votes, the same threshold reconciliation exists to avoid. (S8)

There is also no package yet. The House adopted a budget resolution in July that would allow one, Roll Call reported, but the Senate took no action on its own blueprint, and both versions are built around roughly $100 billion for Iran war and other military funding, agriculture aid and voter ID measures. Sen. Cynthia Lummis, a Wyoming Republican, said Monday she would like to pass a reconciliation bill after the election and would like digital asset provisions in it. "It will be very challenging to sync up with the House and the Senate on what should be included," she said, adding that "opening the tax code is challenging." (S1)

The other side of the hemp fight does not see a loophole worth saving. Harris, the Maryland Republican who chairs the House appropriations subcommittee on agriculture and the FDA, listed closing it among the wins of last year's spending bill, describing "the proliferation of unregulated intoxicating hemp products, including Delta-8 and hemp flower, being sold online and in gas stations across the country." The American Trade Association for Cannabis and Hemp, whose members hold state marijuana licenses, has made the case on equal-treatment grounds. "Closing the loophole creates parity between cannabis and natural intoxicating hemp products (it's not a ban)," the group said in a statement this fall. (S9, S10)

“I truly believe if we don't do something before that Dec.11th deadline, that it's going to create all kinds of issues.”

— Rep. Morgan Griffith, R-Va., to reporters at the Capitol, Oct. 26, 2026

Chris Lindsey, the association's vice president of policy and state advocacy, was blunter when Congress granted the four-week delay. "The loophole empowers bad actors, threatens public health and undermines state regulations," he said, according to Cannabis Business Times. (S11) "We urge Congress to end the scourge of 'gas station weed.'" Representatives of the U.S. Cannabis Roundtable from Trulieve, Curaleaf and Ascend Wellness met this fall with staff for Harris and other members to argue the same thing, the trade publication reported, citing Politico. (S10) For licensed marijuana operators, an untaxed product that skips their testing, tracking and licensing costs is the competitor, and December 11 is relief.

Van Duyne frames it as a choice between a regulated market and a hidden one. "I've heard directly from people across North Texas who consume hemp-derived beverages, and businesses who sell them, that they need clarity, not a ban that pushes this market underground," she said when she introduced the bill. Landsman said people across southwest Ohio had invested in these products safely. "Now the federal government is telling them they can't sell these products anymore," he said. "It will keep people safe and let these folks stay in business." (S6)

The coalition behind the beverage bill is a revealing one. Its launch release carried endorsements from the Wine & Spirits Wholesalers of America, the Texas Package Stores Association, Total Wine & More and the Hemp Beverage Alliance. Dawson Hobbs, the wholesalers' executive vice president of government affairs, said the alcohol system "has kept consumers safe while giving legitimate businesses clear rules to operate under." A three-tier mandate also puts a licensed wholesaler between every hemp seltzer brand and every store shelf. The alcohol distributors backing the bill would be that middle tier. (S6)

Griffith is trying to buy an exemption for a whole product category with a tax on one corner of it. The beverage bill covers drinks, not gummies, vapes or flower. His own bill covers everything, but carries no revenue at all. Bolted together, the tax would supply the budget effect and the framework would ride along, which is precisely the pairing the merely-incidental test was written to catch. There is one more loose end both sides cite. Section 781 told the FDA to publish lists of naturally occurring cannabinoids and THC-class compounds within 90 days of enactment, and as of September 28 the Congressional Research Service reported those lists still had not appeared. (S5, S7, S8)

1. Nov. 3, 2026: midterm elections set the size of the Republican majorities that would have to agree on a reconciliation package.
2. Nov. 12, 2026: hemp-derived products containing cannabinoids a cannabis plant cannot naturally produce lose federal hemp status.
3. Lame-duck session: whether the Senate adopts a budget resolution, the precondition for any reconciliation bill.
4. Dec. 11, 2026: the 0.4 mg per-container cap and the total-THC definition take effect unless Congress acts first.

Griffith said Monday what he would ask of the people who want the ban. Do they want products that are tested, carded at the counter and regulated, he asked, or do they want the same products without any of that? He did not pretend the votes were already there. He named the opponents himself, described the deadline as a problem rather than a policy, and offered a route that depends on a Senate that has not yet agreed to build the road. (S1)

The session Griffith gaveled in on Monday was a placeholder, a way for the House to keep the lights on without doing business. His hemp plan is built on a placeholder, too: a reconciliation bill that does not exist, in a Senate that has not yet agreed to write a budget. December 11 is the only fixed date in the plan, and it is now 44 days away.

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