Shutdown Legislation Brings New Hemp Rules

Key Takeaways

• Recent legislation has established a broader hemp definition that now includes total THC (not just Delta-9).
• New federal limits and exclusions target Delta-8 and other intoxicating cannabinoids.
• FDA guidance and compliance deadlines arrive in early 2026.

In the Continuing Resolution and Appropriations Package (H.R. 5371), enacted into law on November 12, 2025, Congress included several new provisions regarding intoxicating hemp products. The new provisions represent the most significant federal developments on hemp since the 2018 Farm Bill and will go into effect in November 2026.

The 2018 Farm Bill

The 2018 Farm Bill defined “hemp” as the plant Cannabis sativa L. and any part of the plant with a delta-9 tetrahydrocannabinol (Delta-9 THC) concentration of not more than 0.3% by dry weight. Delta-9 THC is the cannabinoid most commonly associated with cannabis’s psychoactive effects.

The 2018 Farm Bill removed hemp from the Controlled Substances Act, paving the way for the legal cultivation, possession, sale, and distribution of the hemp plant. The 2018 Farm Bill delegated to states and Native American tribes broad authority to regulate and limit the production and sale of hemp and hemp products within their borders.

Subsequent Developments

Between 2018 and 2025, states developed their own state-legal hemp regulatory regimes. The federal definition of “hemp” as limited to Delta-9 THC concentration led to a patchwork of approaches at the state level to other intoxicating, hemp-derived cannabinoids, such as Delta-8 THC. Delta-8 THC is one of the many cannabinoids produced naturally by the cannabis plant but is not found in significant amounts in the plant itself. As a result, concentrated amounts of delta-8 THC are generally manufactured from hemp-derivatives. Some states, such as Oregon, have banned Delta-8 THC. At the federal level, agencies have issued warning letters to companies selling copycat food products containing Delta-8 THC when these products could easily be mistaken for traditional foods like chips, cookies, candy, gummies, or other snack food items.

The New Law

H.R. 5371 significantly alters the landscape for the nation’s hemp industry, revising the federal definition of hemp and creating new categories and exclusions that directly affect hemp-derived cannabinoid products. The statute’s changes take effect 365 days after the bill’s enactment, meaning they go into force in November 2026.

The statute revises “hemp” to mean Cannabis sativa L. and any part of the plant with a total tetrahydrocannabinol concentration (including THCA) of not more than 0.3% on a dry weight basis. 

The law defines “hemp-derived cannabinoid product” as a product derived from hemp that contains cannabinoids in any form and is intended for human or animal use through any means of application or administration, such as inhalation, ingestion, or topical application.

The statute further distinguishes between intermediate and final hemp-derived cannabinoid products. Intermediate products are those products that are (1) not yet in their final form to be marketed or not intended to be used by a human or animal or (2) marketed or intended to be mixed, dissolved, formulated, or otherwise added to or prepared with or into any other substance prior to administration or consumption. While the law does not expressly define “final” goods, the first definition of “intermediate” goods suggests that “final hemp-derived cannabinoid products” are those hemp-derived cannabinoid products in their final form to be marketed or intended for use by humans or animals.

Key Exclusions From the Definition of “Hemp”

Furthermore, the new law excludes from the definition of “hemp” any intermediate or final hemp-derived cannabinoid products containing (1) cannabinoids that are not capable of being naturally produced by the plant Cannabis sativa L. or (2) cannabinoids that may be naturally occurring in the cannabis plant but are synthesized or manufactured outside the plant. 

Intermediate hemp-derived cannabinoid products are excluded from the definition of “hemp” if they contain more than 0.3% of total tetrahydrocannabinols, including Delta-9 THC, THCA, and “any other cannabinoids that have similar effects” to a tetrahydrocannabinol (or are marketed as having such effects), as determined by the secretary of U.S. Health and Human Services (HHS). 

Final hemp-derived cannabinoid products are excluded from the definition of “hemp” if they contain more than 0.4 milligrams of total tetrahydrocannabinols, including Delta-9 THC, THCA, and “any other cannabinoids that have similar effects” to a tetrahydrocannabinol (or are marketed as having such effects), as determined by the secretary of HHS.

These combined-total limits make clear that the 0.3% intermediate threshold and the 0.4 milligrams-per-container final-product limit count both total THC (including THCA) and any other HHS-identified or similarly marketed “THC-like” cannabinoids together. 

FDA Directives and Timeline

H.R. 5371’s provisions on hemp will go into effect in November 2026. This one-year runway gives companies time to adjust supply chains and product offerings. However, forthcoming guidance from the U.S. Food and Drug Administration (FDA) will shape the compliance landscape quickly.

The statute requires FDA to publish the following within 90 days of the bill’s enactment, meaning that FDA must issue them on or before February 10, 2026:

• A list of all cannabinoids known to FDA to be capable of being naturally produced by a Cannabis sativa L. plant, as reflected in peer reviewed literature
• A list of all tetrahydrocannabinol class cannabinoids known to the agency to be naturally occurring in the plant
• A list of all other known cannabinoids with similar effects to, or marketed to have similar effects to, tetrahydrocannabinol class cannabinoids
• Additional information including specification as to how the rules will apply to containers of hemp-derived cannabinoid products.

Implications

H.R. 5371 is a significant departure from the federal government’s prior position on hemp pursuant to the 2018 Farm Bill. The statute’s effects are especially acute for products containing higher amounts of tetrahydrocannabinols, particularly Delta-8 THC, which was not previously subject to express federal restrictions. 

If you have any questions concerning the developments discussed in this Update, please contact members of Perkins Coie’s Food & Consumer Packaged Goods Litigation team.