Congress has enacted H.R. 5371, the Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026. Section 781 of the law substantially amends the Agricultural Marketing Act’s definition of “hemp,” tightening the THC threshold and explicitly excluding several categories of hemp-derived cannabinoid products from the definition. Because the Controlled Substances Act (CSA) excludes “hemp” by cross-reference to the Agricultural Marketing Act, narrowing the hemp definition will push many currently marketed intoxicating hemp products back into Schedule I status under the CSA once these changes take effect.
The new definition becomes effective on November 12, 2026, creating a one-year runway for companies to reassess product formulation, packaging, and supply chains — or lobby Congress for changes.
From Delta-9 to “Total THC”
At the heart of the change is a shift from a delta-9 THC-only standard to a “total THC” metric. Effective November 2026, “hemp” will cover the cannabis plant and its derivatives with a total tetrahydrocannabinol (THC) concentration of no more than 0.3% on a dry weight basis. The previous definition had specified this maximum concentration only with respect to delta-9 THC.
This change closes the well-known loophole that enabled products high in non-delta‑9 cannabinoids (e.g., delta‑8, delta‑10, THCA) to qualify as “hemp” so long as the delta‑9 THC concentration remained below 0.3%.
Exclusion of Synthetic, Synthesized, or Manufactured Cannabinoids
Equally consequential are new exclusions that carve out large portions of the consumable product category. Products containing cannabinoids that are not capable of being naturally produced by Cannabis sativa L. (i.e., synthetic cannabinoids) are excluded. So are products containing cannabinoids that could be produced by the plant but “were synthesized or manufactured outside the plant.” While the statute does not define “synthesized” or “manufactured,” the language signals that common conversion processes (for example, chemical conversion of CBD into delta‑8) will be out of bounds. This line-drawing issue — what counts as extraction versus “manufacture” — could be a focal point for compliance strategies and future guidance.
Strict Per-Container Cap for Finished Products
The law also introduces a strict container-level cap for finished products: any final hemp-derived cannabinoid product with greater than 0.4 milligrams per container of total THC (including THCA) and any other cannabinoids with similar effects (or marketed as having similar effects) will be excluded from the new definition (and thus be prohibited from sale or distribution under the CSA). “Container” is defined as the innermost packaging that encloses the final product for retail sale (e.g., a bottle, bag, box, can, or cartridge).
This per-container cap is far below typical serving and package limits found in state programs and will effectively remove most ingestible products (e.g., beverages, edibles, tinctures), as well as many “full-spectrum” products, from lawful federal commerce unless they are reformulated to micro-dose levels.
“Industrial Hemp”
At the same time, the law recognizes “industrial hemp” as a safe harbor. Industrial hemp encompasses non-consumer uses such as fiber, stalk, grain, seed oil, and microgreens, as well as plants used solely for qualifying research. This may signal an intent to support fiber and grain supply chains, while sharply constraining consumable cannabinoid products.
FDA Lists and Near-Term Guidance
Within 90 days of enactment, the U.S. Food and Drug Administration (FDA) must publish several clarifying lists in consultation with the U.S. Department of Health and Human Services (HHS): (1) cannabinoids capable of being naturally produced by Cannabis sativa L.; (2) THC-class cannabinoids naturally occurring in the plant; (3) other cannabinoids with similar effects (or marketed to have similar effects) to THC; and (4) additional specificity on the term “container.” These lists will be critical in determining which compounds count toward the 0.4 mg per-container cap and how products should be packaged and labeled. Placement of compounds such as THCV or HHC on the “similar effects” list could potentially broaden the cap’s reach beyond THC isomers.
Why It Matters
The recent changes to the federal definition of “hemp” represent a massive sea change for the current intoxicating hemp market, criminalizing on its effective date a large swath of previously federally legal activity. Industry stakeholders in both the intoxicating hemp and traditional cannabis spaces should track this issue closely — including whether Congress acts to delay or otherwise change course.
The interaction of this new definition with existing state laws will be complex. States that have permitted intoxicating hemp products or higher per-serving thresholds will confront federal preemption issues for interstate commerce and may adjust their own rules to align with the new federal framework.
Our Cannabis Practice provides advice on issues related to applicable federal and state law. Cannabis remains an illegal controlled substance under federal law.