Psychoactive Hemp Products Will Be Federally Prohibited in a Year Unless Congress Intervenes
A spending bill approved as part of the package that ended the federal shutdown aims to close a loophole that gave birth to $28 billion industry.
Thanks to a bill approved as part of the package that ended the federal shutdown, intoxicating hemp products will be federally prohibited as of November 13, 2026, a year after President Donald Trump signed the legislation. Unless Congress intervenes, that ban will put an end to a $28 billion industry that offers psychoactive beverages, edibles, flower, and vape cartridges to consumers in dozens of states.
Congress accidentally authorized that industry in 2018, when it approved a farm bill that legalized hemp. That law defined hemp to include any part of the cannabis plant containing less than 0.3 percent delta-9 tetrahydrocannabinol (THC), the main psychoactive ingredient in marijuana. The definition also included "all [hemp] derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers," as long as their delta-9 THC content is less than 0.3 percent.
The farm bill opened the door to a wide range of hemp-derived products containing delta-8 THC, an isomer that has effects similar to those of delta-9 THC, or tetrahydrocannabinolic acid (THCA), which converts to delta-9 THC when heated. That explains all those seemingly illegal THC products you may have seen online or in vape shops, pharmacies, or liquor stores, which offer alternatives for cannabis consumers who live in states that still prohibit recreational use of marijuana.
Sen. Mitch McConnell (R–Ky.), who championed hemp legalization, was dismayed to discover that the bill also authorized these marijuana substitutes. "My 2018 hemp bill sought to create an agricultural hemp industry," he said during a hearing last July, "not open the door to the sale of unregulated, intoxicating, lab-made, hemp-derived substances with no safety framework."
McConnell pushed a narrower definition of hemp that was included in a spending bill that Congress approved when it reopened the federal government. The new definition, which takes effect 365 days after the bill's enactment, excludes hemp products containing "cannabinoids that are not capable of being naturally produced" by the cannabis plant or that "were synthesized or manufactured outside the plant." It also bans products containing more than "0.4 milligrams combined total per container" of "tetrahydrocannabinols" (including THCA) or "any other cannabinoids" with "similar effects."
The ban applies to various brands of cider and seltzer, such as Luna, Yana, Tree Time, Honor Hemp, and Mountain High, that contain THC doses ranging from two to 10 milligrams per can. It also covers edibles such as Delta 8 Gummies, Blue Planet chocolate bars, and 3Chi brownies; vape cartridges sold by companies such as Puffy, Black Sheep, and Frozen Fields; and flower brands such as Arete, Black Tie, and 25 Hour Farms.
The U.S. Hemp Roundtable (USHR) estimates that "95% of our industry will be banned" as a result of the 0.4-milligram cap. The trade group says that includes "the large majority of non-intoxicating CBD products on the marketplace," contrary to assurances that such products would be spared. "Recriminalizing hemp will force American farms and businesses to close and disrupt the well-being of countless Americans who depend on hemp," warns the USHR, which says the industry employs about 300,000 people.
Sen. Rand Paul (R–Ky.), who opposed the redefinition of hemp, complained that it would "harm Kentucky's hemp farmers and small businesses" by "screwing up an entire industry." Beau Whitney, chief economist for the National Industrial Hemp Council and the National Cannabis Industry Association, warns that the ban will have a similar effect in Texas, another major hemp producer. "There's roughly 6,350 businesses that are projected to fail as a result of this," Whitney told Houston Public Media, which he said would "displace over 40,000 workers." He called it "an extinction-level event" that will "set the industry back decades."
The USHR is holding out hope that Congress can be persuaded to regulate psychoactive hemp products instead of banning them. "We have until November 13, 2026 to help [the] federal government understand how to regulate hemp and protect Americans," it says.
Paul's attempt to remove the hemp language from the spending bill was defeated by a vote of 76 to 24. Because "senators were scared by claims that this hemp debate would lead to a longer and more painful government shutdown," the USHR says, "some of our good friends [felt compelled] to vote against us to hurry the government's opening." In the House, at least 13 Republicans have publicly voiced opposition to the ban.
Paul plans to introduce a bill that would leave the regulation of psychoactive hemp products to the states. "I don't use hemp, but I'll defend your right to," he said on X last week. "Now Washington wants to wipe out a $25 billion industry and override hemp laws in 25 states. Kentucky regulates hemp responsibly. We allow a simple 5mg hemp drink because adults can make their own decisions. We also know legal, regulated products are always safer than pushing everything back to the black market. To the lawmakers pushing this backward policy: We tried prohibition. It failed. Let adults make their own choices, stay out of businesses, and leave state laws alone."
Last week, Rep. Nancy Mace (R–S.C.) introduced a bill that would repeal the redefinition of hemp. The USHR says Rep. Morgan Griffith (R–Va.) "plans to soon introduce a bill that would replace a total ban with robust regulation of hemp products."
In September, the attorneys general of 39 states urged Congress to "clarify the federal definition of hemp" and thereby "prevent the continued sale of unregulated, intoxicating THC products." But as the USHR notes, "prohibition without regulation will shift these products to the black markets."
It would be rather strange, of course, for Congress to bless the production and distribution of cannabis-derived marijuana substitutes when marijuana itself is still completely prohibited under federal law. Forty states now allow medical use of marijuana, while 24, accounting for most of the U.S. population, also allow recreational use. Yet the federal ban on marijuana, first enacted in 1937, remains in place, which means state-licensed cannabis suppliers still face legal risks and financial burdens stemming from a policy that a large majority of Americans reject. The senselessness of that policy will be even more blatant if Congress decides it can tolerate psychoactive hemp products.