New Federal Hemp Rules and the 0.4 mg THC Cap: Bad News for Hemp Drinks

Congress just slipped a near-total federal hemp rewrite into the shutdown bill. If you blinked, you missed it.

Section 781 of the Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026 quietly amends the 2018 Farm Bill’s hemp definitions at 7 U.S.C. § 1639o. Effective 365 days after enactment, the statute no longer just talks about “0.3% delta-9 THC by dry weight.” It now talks about total THC + “other cannabinoids that have similar effects” and it drops a 0.4 milligram per container cap on hemp-derived cannabinoid products.

On paper, this is pitched as a fix for high-dose gummies and kid-friendly intoxicating products. In practice, it sweeps up a huge swath of hemp-derived beverages and low-dose ingestibles that have been playing by the rules and age-gating from day one.

Below is a walk-through of what Congress just did, why it matters, and what hemp beverage and cannabinoid brands should be thinking about.

1. How we got here: from the 2018 Farm Bill to the “hemp loophole”

The 2018 Farm Bill defined “hemp” as cannabis with no more than 0.3% delta-9 THC by dry weight, and it expressly included “all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers” of that plant. 

Industry and regulators then spent the next seven years fighting about what that meant:

• Delta-8 and friends. Manufacturers discovered that if you start with compliant CBD and isomerize it into delta-8, delta-10, HHC, etc., the resulting products often still met the letter of the 0.3% delta-9 standard. Courts like the Ninth Circuit in AK Futures leaned into the statutory text and treated delta-8 products made from lawful hemp as lawful hemp themselves.
  
• DEA letters. DEA issued a series of opinions and interim rules: one confirming that non-“work in progress” hemp extracts under 0.3% delta-9 THC are not controlled; another confirming that cannabis seeds, tissue culture, and genetic material under 0.3% delta-9 THC are not controlled—regardless of what the mature plant might someday contain.
  
• State patchwork. States responded by banning or heavily regulating intoxicating hemp cannabinoids, especially delta-8, in the absence of robust FDA action on CBD or hemp foods.
  

Meanwhile, intoxicating hemp products—especially high-dose edibles and gummies in convenience packaging—exploded into gas stations and smoke shops nationwide, including in prohibition states. That drew the ire of public health advocates, the marijuana industry (which is regulated and taxed more heavily), and key members of Congress.

Section 781 is Congress finally acting—just not in the farm bill, and not with a scalpel.

2. What Section 781 actually changes in 7 U.S.C. § 1639o

Section 781 does three big things:

1. Redefines “hemp” around total THC and “similar-effect” cannabinoids.
   
2. Creates a new safe harbor for “industrial hemp.”
   
3. Defines “hemp-derived cannabinoid products” and caps THC (and similar cannabinoids) at 0.4 mg per container.

A. Hemp = 0.3% “total THC” plus a carve-out minefield

The core “hemp” definition is now:

• Cannabis sativa L. and any part of the plant (including seeds, derivatives, extracts, cannabinoids, etc.)
  
• With a total tetrahydrocannabinols concentration (including THCA) of not more than 0.3% on a dry weight basis.

So we move from “delta-9 THC” to total THC, explicitly including THCA. That’s a major shift for growers and processors who have been relying on pre-decarb testing windows.

But then Congress adds exclusions—things that are no longer “hemp” at all:

1. Certain viable seeds. Hemp no longer includes “viable seeds from a Cannabis sativa L. plant that exceeds a total THC concentration of 0.3% in the plant on a dry weight basis.” In English: seeds from high-THC cannabis plants get kicked out of the hemp bucket. That’s a direct response to DEA’s acknowledgment that seeds under 0.3% delta-9 THC are generally uncontrolled under the CSA, even if they could grow into “marijuana.”
   
2. Intermediate products with “wrong” cannabinoids. Hemp no longer includes intermediate hemp-derived cannabinoid products that contain:
   
   • Cannabinoids not capable of being naturally produced by the plant;
     
   • Cannabinoids that are capable of being naturally produced but were synthesized or manufactured outside the plant; or
     
   • More than 0.3% combined total THC + any other cannabinoids with “similar effects (or marketed to have similar effects)” on humans or animals.
     
3. Intermediate products sold like finished goods. If an “intermediate” is “marketed or sold as a final product or directly to an end consumer,” it falls out of the hemp definition entirely.
   
4. Final products with synthesized / “similar effect” cannabinoids or too much THC. A “final hemp-derived cannabinoid product” is excluded from hemp if it contains:
   
   • Any cannabinoid that can’t be produced naturally by the plant;
     
   • Any naturally occurring cannabinoid that was synthesized or manufactured outside the plant; or
     
   • More than 0.4 mg combined per container of
     
     • total THC (including THCA), plus
       
     • any other cannabinoids that have similar effects (or are marketed to have similar effects) on humans or animals (as determined by HHS).
       

That last bullet is the sledgehammer. You can still grow hemp under a 0.3% total THC limit, but once you put cannabinoids into a bottle, can, jar, or gummy bag, you get 0.4 mg per container. Total.

For context: a typical “low dose” hemp beverage in the responsible segment of the market might be 2–5 mg THC per 12 oz can, with many at 10 mg to match regulated cannabis drinks. All of those are instantly outside the federal hemp definition under this rule, even if they’re well under 0.3% THC by weight. Industry analysis across outlets like Cannabis Business Times and hemp trade groups all land on the same practical conclusion: the cap is functionally a ban for most ingestible hemp products.

B. A new “industrial hemp” safe harbor

Recognizing that there is still a fiber and grain industry to protect, Section 781 carves out “industrial hemp”—hemp that:

• Is grown for stalk/fiber and non-cannabinoid derivatives;
  
• Is grown for grain/seed uses (whole grain, oil, hulls, etc.), again limited to non-cannabinoid derivatives;
  
• Is grown for microgreens and edible leaf products from immature hemp;
  
• Is grown for higher education or research institute uses without entering commerce; or
  
• Is grown for viable seeds used solely to produce the first four categories.

In other words, if you’re in fiber, grain, or academic research, you’re now explicitly “industrial hemp” and largely outside the new cannabinoid crossfire.

If you are using hemp to make ingestible cannabinoid products—even low-dose adult-use beverages—you’re solidly inside the new minefield.

C. “Hemp-derived cannabinoid product,” “intermediate,” and “container”

Section 781 adds a definition for “hemp-derived cannabinoid product”:

• Any intermediate or final product derived from hemp (other than industrial hemp),
  
• That contains cannabinoids in any form, and
  
• Is intended for human or animal use by inhalation, ingestion, or topical application.

It then defines:

• Intermediate hemp-derived cannabinoid product: powders, liquids, tablets, oils, or other forms intended to be mixed into something else before consumption.
  
• Container: the innermost jar, bottle, can, bag, box, cartridge, etc., in “direct contact” with the final product and used for retail sale to the consumer. Multi-packs or outer cartons don’t count—only the individual units.

That “container” concept is where the 0.4 mg cap lives: the ceiling is per can, per bottle, per gummy bag, not per serving.

D. FDA gets homework: national cannabinoid lists in 90 days

Finally, Section 781 orders FDA, within 90 days, to publish:

1. A list of all cannabinoids known to be naturally produced by cannabis, per peer-reviewed literature;
   
2. A list of THC-class cannabinoids naturally occurring in the plant;
   
3. A list of other cannabinoids with similar effects (or marketed to have similar effects) to THC; and
   
4. “Additional information and specificity” about what counts as a “container.”

This pushes FDA from its current “we’re still evaluating CBD” posture into an active role defining which cannabinoids are tolerated and which are verboten.

3. The 0.4 mg rule: this is not a tweak, it’s a near-ban

The political narrative around Section 781 is that Congress is “closing the hemp loophole” and protecting kids from high-dose delta-8 gummies and convenience-store edibles.

But instead of drawing a line around intoxication or dose per serving, Congress chose:

• A per-container cap of 0.4 mg total THC + similar-effect cannabinoids; and
  
• Language that sweeps in any cannabinoid regulators decide has “similar effects” or is “marketed to have similar effects.”

Across commentary from national outlets and trade groups, you see the same math:

• “Basically zero.” Advocates estimate that 95%+ of current hemp ingestibles exceed 0.4 mg per container.
  
• Even CBD products get hit. Many mainstream CBD tinctures, balms, and beverages have trace THC above 0.4 mg in a full bottle while staying under 0.3% by weight. Those now fall outside the federal hemp definition.

From a beverage-industry perspective, this is not a calibrated safety standard. It is a legal line that effectively pushes almost any product with psychoactive potential—no matter how responsibly packaged, age-gated, and dosed—into the same bucket as unregulated gas-station gummies.

The policy irony: a manufacturer that moved early, insisted on age verification, stuck to 5–10 mg per serving, and aligned with adult-use cannabis labeling norms now finds itself treated the same as the worst actor with cartoon gummies in a vape shop display.

4. Seeds, “synthetics,” and conversions: the chemistry problem

Section 781 also tries to clean up two other flashpoints: seeds and “synthetic” cannabinoids.

Seeds vs. DEA’s position

DEA has already acknowledged that cannabis seeds, tissue culture, and genetic material with ≤0.3% delta-9 THC are not controlled under the CSA—even if those seeds might grow into a high-THC plant.

Congress responds here by:

• Pulling viable seeds from high-THC plants out of the hemp definition, and
  
• Creating an “industrial hemp” safe harbor for seed used for fiber, grain, microgreens, and research.

That’s going to force seed companies and breeders into careful chain-of-title and intended-use documentation if they want to stay on the right side of federal hemp vs. marijuana.

“Synthesized or manufactured outside the plant”

The statute repeatedly carves out cannabinoids that:

• “Are capable of being naturally produced by a Cannabis sativa L. plant; and
  
• Were synthesized or manufactured outside the plant.”

This is clearly aimed at delta-8/delta-10/HHC conversion chemistry from CBD isolates. But the language is broad enough to raise questions about:

• Standard purification work (winterization, distillation, crystallization);
  
• Decarboxylation (arguably still “inside” the plant matrix vs. chemical synthesis?);
  
• Other chemical transformations that are routine in flavor and fragrance work but not usually used to criminalize ingredients.

Expect science-heavy arguments (and litigation) around what counts as “synthesized or manufactured outside the plant” when the starting material is an agricultural commodity that Congress deliberately legalized in 2018.

5. FDA’s new lists and the “similar effects” vagueness problem

Within 90 days, FDA now has to publish:

• A list of naturally produced cannabinoids,
  
• A list of THC-class cannabinoids, and
  
• A list of other cannabinoids with similar effects or marketed as such.

That last category is going to be doing a lot of work. Does it include:

• THCV? CBN? Certain rare cannabinoids with ambiguous pharmacology?
  
• Novel cannabinoids with little safety data but aggressive marketing?
  
• Any cannabinoid where a brand’s marketing department got cute with “relaxation” or “buzz” language?

The statute also keys off what is “marketed to have similar effects.” That invites future disputes where:

• The chemistry is benign, but a marketer over-promises; or
  
• A product is sold as non-intoxicating but a competitor, regulator, or plaintiff says the effect is “similar enough.”

Given FDA’s existing view that CBD cannot currently be lawfully marketed as a dietary supplement or food ingredient, this new assignment doesn’t simplify anything. It layers a cannabinoid taxonomy problem on top of an already unresolved FDCA compliance problem.

6. This was not done in a vacuum (or the farm bill)

One of the more frustrating aspects of Section 781 is how it was passed.

• It’s embedded in a multi-bill spending package used to end a government shutdown, not in the farm bill where hemp policy is typically debated.
  
• The hemp language moved late and fast, reportedly with strong support from Senator McConnell and Rep. Andy Harris, and over strong opposition from legislators from hemp-heavy states like Kentucky, including Senator Rand Paul.
  
• Hemp trade groups and civil-liberties advocates are already labeling it a near-total recriminalization of the hemp cannabinoid sector that has grown up under the 2018 Farm Bill.

Congress did include a one-year delayed effective date, which is both a compliance clock and a political window. There is already open talk in the industry and among some members of Congress about revisiting or narrowing the language in future appropriations or the next full farm bill.

But until Congress actually revisits it, the statute on the books is the statute on the books.

7. Likely litigation and open legal questions

Several features of Section 781 are almost begging for litigation:

• Vagueness. “Cannabinoids that have similar effects (or are marketed to have similar effects)” is imprecise. Due process challenges will argue that manufacturers can’t reasonably know what is covered.
  
• Retroactivity / takings flavor arguments. Companies that invested heavily under the 2018 framework will explore regulatory-takings theories and reliance interests, especially where states actively encouraged hemp innovation.
  
• Commerce Clause and preemption. The new federal definition will intersect awkwardly with state regimes that already regulate intoxicating hemp products differently, and with state cannabis programs that use their own cannabinoid thresholds.
  
• CSA interplay. Once a product falls outside “hemp,” does it automatically drop back into “marijuana” under the Controlled Substances Act? How will that be enforced against retailers and distributors that stocked products while they were lawful hemp and now sit on stranded inventory? Over half the industry for hemp-derived beverages hold federal and state permits and licenses for liquor manufacturing and distribution that would be lost with a finding of criminal activity under the CSA.

Add to that the inevitable administrative law challenges to FDA’s cannabinoid lists and “similar effects” determinations, and you have years of uncertainty baked in.

8. What hemp beverage and cannabinoid companies should be doing now

That one-year runway is not a long time in beverage world. If you’re in the hemp-derived THC or CBD space, especially beverages, some immediate action items:

1. Map your portfolio against the 0.4 mg cap.
   
   • Inventory every SKU: total THC (including THCA) per container, plus any other psychoactive cannabinoids.
     
   • Assume that if you’re above 0.4 mg per can/bottle/jar, that product cannot remain a “hemp-derived cannabinoid product” under federal law once the effective date hits.
     
2. Separate “industrial hemp” from cannabinoid lines.
   
   • If you have genuine fiber, grain, or non-cannabinoid hemp-food products, document them as “industrial hemp” uses.
     
   • Keep supply chains and marketing clearly segregated.
     
3. Re-read your contracts.
   
   • Distribution, co-packing, and licensing agreements should be reviewed for:
     
     • Regulatory change / illegality clauses;
       
     • Termination, force majeure, and allocation of compliance costs;
       
     • Obligations to maintain “lawful” status under federal law vs. state law.
       
   • Start drafting your “regulatory change” amendments now instead of litigating them later.
     
4. Plan for dual-track product strategies.
   
   • Some brands will pivot intoxicating SKUs into state-licensed cannabis channels while trying to keep non-intoxicating or trace-THC products in the “hemp” bucket (if they can be reformulated under 0.4 mg).
     
   • Expect friction where alcohol distributors, grocery chains, and hospitality accounts want clear, conservative lines about what they will touch.
     
5. Engage FDA and Congress.
   
   • FDA’s 90-day cannabinoid-list process is an opportunity for science-driven comment—especially from responsible beverage and wellness companies that have been self-regulating dosage, packaging, and age gating.
     
   • On the Hill, the one-year delay is explicitly being treated, in some circles, as an invitation to revisit the provision. Document your safety practices, age gating, and incident data; that story matters more than “we like our seltzers.”
     
6. Tighten your marketing.
   
   • The “marketed to have similar effects” language makes copywriting a liability point.
     
   • Even if you reformulate under 0.4 mg, THC-adjacent effect claims could pull otherwise compliant products out of the hemp definition.

9. Bottom line

Section 781 is not a narrow fix for gas-station delta-8. It is a sweeping redefinition of federal hemp that:

• Locks hemp down to a 0.3% total THC plant standard;
  
• Tries to erase most conversion-based intoxicating cannabinoids by declaring them “outside the plant”; and
  
• Imposes a 0.4 mg per container cap that, as a practical matter, wipes out almost all hemp-derived ingestibles with meaningful psychoactive effect, including many products that have been responsibly age-gated, labeled, and kept below 10–25 mg per serving.

For hemp beverage and cannabinoid companies that leaned into responsible practices and built real businesses on the 2018 Farm Bill’s language, this feels less like a calibration and more like the rug being pulled out.

The law is now on the books, with a one-year countdown. The next twelve months are going to be a mix of reformulation, contract triage, advocacy, and, almost certainly, litigation.

And if Congress decides it doesn’t like the collateral damage to legitimate beverage makers, it’s going to need to come back and do what it should have done in the first place: legislate on hemp cannabinoids in the open, with data, in the farm bill—or in a standalone statute—rather than in the fine print of a shutdown deal.