The new hemp clone loophole appears in Congress’s latest hemp rewrite, where “hemp” is defined by total THC at the time of testing but largely ignores clones, mother plants, and tissue culture. A young cannabis clone that tests under 0.3% total THC is treated as legal hemp—even if it will later produce high-THC flower—creating a new pathway for interstate movement of cannabis genetics.
If you need to understand how this affects your grow or cannabis business, call Howard Law Group to discuss your specific situation.
What did Congress say it was fixing with hemp?
When Congress pushed through the latest bill to reopen the government, it also rewrote the federal definition of hemp. The public message was straightforward:
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Shut down intoxicating hemp products
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Get rid of delta-8 gummies and THCA “hemp” flower at gas stations
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Rein in vape bars selling “wellness” products that are, in reality, unregulated THC
To do that, lawmakers:
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Introduced “total tetrahydrocannabinols” (a new umbrella term covering THC, THCA, and similar cannabinoids)
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Imposed container-level limits on total THC
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Banned synthetic and semi-synthetic cannabinoids
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Closed the “hot seed” loophole by excluding viable seeds from high-THC plants
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Created sub-categories such as “industrial hemp,” “intermediate hemp-derived cannabinoid products,” and “final hemp-derived cannabinoid products”
On its face, the goal was to restore order to the hemp market and pull intoxicating products off unregulated shelves.
Takeaway: Congress wrote a detailed framework for products and seeds, not for how cannabis is actually grown.
How did Congress redefine hemp in HR 5371?
The new federal language describes hemp as:
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The plant Cannabis sativa L., and
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Any part of that plant
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With total tetrahydrocannabinols of no more than 0.3% on a dry-weight basis
“Total tetrahydrocannabinols” includes:
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Delta-9 THC
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THCA (converted to THC through a formula)
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Other cannabinoids with similar intoxicating effects, as future regulations flesh out
Congress then breaks hemp down further. For example:
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Industrial hemp: grown for stalks, fiber, grain, and some microgreen/leaf uses
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Hemp-derived cannabinoid products: things people ingest, inhale, or apply (gummies, vapes, tinctures, topicals)
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Intermediate products: extracts and ingredients destined for those final products
All of that is carefully structured around consumable products and THC levels at the moment of testing.
Takeaway: The law focuses on what people eat, drink, vape, or apply—not on the early plant stages growers actually trade.
Where does the new hemp clone loophole come from?
The key phrase in the definition is “any part of the plant.” Many lawmakers likely thought that meant:
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Seeds
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Fiber
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Stalks
But in both plant science and legal drafting, “any part of the plant” includes:
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Roots and shoots
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Leaves and stems
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Vegetative cuttings, clones, mother plants, and tissue culture
At the same time, Congress added very specific rules for some early plant life, such as:
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Microgreens and edible hemp leaves must come from compliant seed (seed from plants that meet the 0.3% total THC threshold).
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Viable seeds from plants above 0.3% total THC are excluded from hemp altogether.
So the law clearly covers:
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Which seeds can be sold as hemp
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How microgreens can be grown and marketed
But once you move past seeds and microgreens and into clones and vegetative material, the text goes quiet.
If you germinate a seed and:
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Do not market the plant as food, and
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Take clones or cuttings from that plant while it is still immature
You are dealing with plant material that is tested and defined only by its current total THC level, not by its genetics or future potential.
A young clone that has not yet developed cannabinoids:
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Shows negligible total THC on a lab test
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Has no intoxicating effect at the time of sale
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Fits neatly within the written definition of hemp
Takeaway: Congress tightly regulated seeds and edible microgreens but largely ignored clones and other vegetative stock.
Why clones are not “hemp-derived cannabinoid products”
To close the old product-based loopholes, Congress created definitions for:
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Hemp-derived cannabinoid products – final products intended for human or animal use through inhalation, ingestion, or topical application.
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Intermediate hemp-derived cannabinoid products – ingredients and intermediates (like extracts and distillates) that will be processed into those final products.
That list clearly targets:
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Gummies
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Beverages
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Vapes
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Tinctures
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Oils and topical creams
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Extracts, crude oil, and other pre-finished inputs
A clone does not fit either category:
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It is not intended for human or animal consumption.
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It is not inhaled, ingested, or applied.
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It is not an ingredient; it is a living plant.
Instead, a clone falls back into the broad category Congress started with: “any part of the plant” that tests under 0.3% total THC on a dry-weight basis.
Takeaway: Clones are treated as plant material, not as hemp-derived products—placing them squarely inside the hemp definition when they test clean.
The practical effect: a new path for interstate cannabis genetics
Put all of this together, and the new hemp clone loophole looks like this:
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A young clone or tissue culture sample has no intoxicating effect at the time of sale.
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It tests below 0.3% total THC when sampled.
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It is not an intermediate or final hemp-derived cannabinoid product.
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It is not consumed in any way.
On that day, for federal purposes, the clone is hemp.
Weeks later, under a 12-hour light schedule with nutrients and proper cultivation, that same plant can produce:
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High-THCA flower
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Biomass for extraction
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Cannabis products sold through a state-licensed market
At that later stage, the plant is no longer a federal hemp question; it becomes a state marijuana law question.
For growers, nurseries, and multi-state operators, the implications are significant:
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Genetics, not finished products, become the central opportunity.
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Inter-state movement of compliant clones may be treated as hemp commerce, even if the end use is state-legal cannabis production.
If you are considering any strategy built around the movement of genetics, you should contact our office to review your plan in light of both federal hemp rules and Illinois cannabis law.
Takeaway: The new loophole effectively shifts the focus from intoxicating hemp products to compliant plant genetics at early growth stages.
Who benefits—and who loses—from the hemp clone loophole?
Businesses likely to lose ground
The old product-based loophole fueled:
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Convenience-store delta-8 gummies
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High-THCA “hemp” flower in unlicensed markets
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Online brands promising “legal highs” based solely on the 2018 Farm Bill wording
These products depend on selling finished, intoxicating items outside state-regulated cannabis systems. Under the tighter definitions, many of those SKUs no longer fit within hemp.
Businesses positioned to benefit
By contrast, the new framework quietly favors:
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Commercial cultivators who rely on steady, predictable genetics
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Nurseries and tissue culture labs that specialize in clones and mother stock
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Multi-state operators that want to align genetics across locations without shipping intoxicating products
If a clone is properly documented, tested, and shipped while it still meets the hemp definition, it may be able to move where finished intoxicating products cannot.
Takeaway: Retailers selling “hemp highs” are squeezed, while growers and genetics suppliers gain new strategic options.
How long is the new hemp clone loophole likely to last?
The clone loophole is unlikely to be a short-lived glitch for several reasons:
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Low political visibility
Clones and tissue culture do not generate the same headlines as flavored gummies at a gas station. -
Difficulty regulating future potency
Regulating plants based on what they might contain weeks or months later is technically complex and politically unappealing. -
Farm Bill timing
Hemp definitions tend to move with larger agricultural and spending bills. They are not rediscovered every year. -
Political balance
The current language allows Congress to say it “cracked down” on intoxicating hemp products while quietly giving the cannabis industry the one thing it has wanted for years: a more defensible path to interstate movement of commercial genetics.
For operators planning ahead, that window may cover much of the next Farm Bill cycle.
Takeaway: The clone loophole is not guaranteed to last forever, but it is unlikely to be the first hemp issue Congress revisits.
What should cannabis and hemp businesses do now?
If you operate in hemp, cannabis, or a related industry, consider:
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Separating product and plant strategies
Treat finished ingestible products and plant genetics as separate business lines with different legal risks. -
Auditing your genetics pipeline
Understand where your seeds, clones, and mothers originate and how they would test at early stages under the new total THC standard. -
Re-evaluating “hemp high” inventory
Assume many intoxicating hemp products have a limited future under the new framework. -
Documenting compliance
If you are working with clones or tissue culture, maintain thorough records: test results, certificates of analysis, shipping documentation, and clear descriptions of intended use. -
Getting jurisdiction-specific advice
Federal hemp law sets the floor, but Illinois and other states still control who may grow, process, and sell marijuana.
If you are considering any strategy based on the new hemp clone loophole, call Howard Law Group to discuss how federal and Illinois law interact in your specific circumstances.
Takeaway: This is a planning moment. Businesses built purely on product loopholes should reassess, while those focused on genetics may have new opportunities—if they handle the details correctly.
FAQs: New Hemp Clone Loophole
What is the “new hemp clone loophole”?
The new hemp clone loophole comes from defining hemp by total THC at the time of testing, while largely ignoring clones and vegetative stock. Young clones that test below 0.3% total THC are treated as hemp, even though they may later produce high-THC cannabis in a state-regulated program.
Are clones considered hemp-derived cannabinoid products?
No. Hemp-derived cannabinoid products are items intended for human or animal use through ingestion, inhalation, or topical application. Clones are living plants. They are not consumed, inhaled, or applied, so they fall under the plant definition of hemp, not the product categories.
Can compliant hemp clones move across state lines?
Under the written definition, a clone that tests below 0.3% total THC on a dry-weight basis at the time of testing can qualify as hemp. Hemp is generally permitted in interstate commerce, subject to other federal and state rules. How those clones are used after arrival is governed by each state’s cannabis laws.
Does the hemp clone loophole legalize marijuana?
No. The loophole does not legalize marijuana. It allows certain early-stage plants to qualify as hemp when shipped. Once those plants are grown out and produce high-THC flower or extracts, they must be handled within state-licensed marijuana programs or they may be treated as illegal under federal law.
How does this affect gas stations and small retailers?
Gas stations and small retailers that relied on delta-8, THCA “hemp” flower, and similar products are the most exposed. The new framework narrows what counts as hemp, especially for finished intoxicating products. Many of the old “legal high” offerings are unlikely to fit comfortably within the revised definition.
What should I do if my business model depends on hemp products?
If your revenue depends heavily on intoxicating hemp products, you should reassess your risk and consider shifting toward regulated cannabis channels or non-intoxicating hemp uses. To evaluate your options under both federal rules and Illinois law, contact Howard Law Group and speak with an attorney about your particular business.
Disclaimer, Author & Contact
This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship. Cannabis and hemp laws change quickly; you should consult a lawyer licensed in your jurisdiction about your specific situation.
Author: Thomas E. Howard, Attorney at Law (ARDC 6300059)
Last reviewed/updated: 2025-11-26
