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The U.S. government reopened on Wednesday and promptly "closed the loophole" on intoxicating hemp products. I use those tacky quotes because I don't believe there ever was a loophole. But now we can stop having those debates, I suppose, because Congress has sealed the deal.
The ban on intoxicating hemp items comes via a continuing appropriations bill called H.R. 5371. The ban takes effect a year from now, on November 12, 2026. Everyone has 12 months to lobby for rules, sell off products, untangle business relationships, and otherwise prepare.
What does H.R. 5371 actually say and do?
H.R. 5371 gives the term "hemp" a new legal definition, effective November 10, 2026. Section 781 now provides that hemp is "the plant Cannabis sativa L. and any part of that plant... with a total tetrahydrocannabinols concentration (including THCA) of not more than 0.3% on a dry weight basis." The term "hemp" also includes "industrial hemp" (which also gets a new definition), but excludes several notable things.
The first notable exclusion is seeds of cannabis plants that exceed 0.3% on a dry weight basis; viz. marijuana seeds. The DEA opined previously that these seeds are "hemp" and not "marijuana." That's no longer the case under the new definition.
The second notable exclusion is for "intermediate hemp-derived cannabinoid products." These are products that contain cannabinoids that cannot be produced naturally in the cannabis plant. In other words, they are synthesized or manufactured outside of the cannabis plant.
- This group also includes products with more than 0.3% total THC, including THCA, and "any other cannabinoids with similar effects on humans or animals as THC." Who determines what "similar effects" are? That would be the Secretary of Health and Human Services.
The third exclusion is for "final hemp-derived cannabinoid products." These again are products that contain cannabinoids that cannot be produced naturally in the cannabis plant, and are synthesized or manufactured outside the plant.
- These products have "greater than 0.4 milligrams combined total per container" of THC, THCA, or cannabinoids with similar effects. The Secretary of Health and Human Services again makes the call here.
What happens next?
Within 90 days, the FDA must publish a series of lists:
- a list of cannabinoids capable of being naturally produced by Cannabis sativa L.
- a list of all tetrahydrocannabinol class cannabinoids known to be naturally occurring in the plant; and
- a list of all other known cannabinoids with similar effects to tetrahydrocannabinol class cannabinoids.
FDA also must give "additional information and specificity" about the term "container", which is currently defined as:
"the innermost wrapping, packaging, or vessel in direct contact with a final hemp-derived cannabinoid product in which the final hemp-derived cannabinoid product is enclosed for retail sale to consumers, such as a jar, bottle, bag, box, packet, can, carton, or cartridge."
The definition excludes bulk shipping containers or outer wrappings that are "not essentially for the final retail deliver or sale to an end consumer for personal or household use." There is also an exclusion for drugs under FDA review.
Beyond these missives for FDA, it's possible we'll see some litigation, perhaps on due process grounds or other theories, none of which look promising at the moment. Additionally, we should expect some lawmaking at the state and local levels. Intoxicating hemp products are permitted in some states, expressly or otherwise, and some of those states may choose to toe the federal line.
What hemp products are still allowed?
Most finished "hemp" products currently on the market will not survive H.R. 5371. This is because most contain more than 0.3% delta-9 THC or THCA, or some combination thereof, and are designed to get you high.
Still, not everything is banned. "Industrial hemp" is safe. CBD products should also be safe, along with other "known cannabinoids" that don't wind up on FDA's "similar effects to THC" list. There is a giant caveat here: these products cannot: 1) be added to human or animal foods; 2) be labeled as dietary supplements; or 3) make unapproved health claims.
Of course, people are making and selling all sorts of CBD food and beverage products now, and the question will be whether the feds continue to tolerate that. A year from today, we may also have a similar, $20 billion question for all of these intoxicating hemp products, should they remain on offer.
Conclusion
I've written a lot about hemp since 2018. I'm not surprised by H.R. 5371. I think the ban, if enforced, will be good for state-licensed cannabis businesses and also consumers. I'm sure a lot of people disagree, especially anyone creating cannabinoids in a lab; anyone buying isolate from marijuana farms and calling it "hemp"; or anyone living in a prohibition state.
All of that said, I'm not celebrating this one either. I view H.R. 5371 as another ad hoc attempt to regulate the cannabis plant within a reactionary, "slice and dice" framework. It's not the way I would have gone about it, and it's not wholistic policy– especially with marijuana rescheduling stalled out. But that's cannabis for you. Let's see what happens next.
Notes On The Federal Prohibition Of Intoxicating Hemp
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