Rapid City SD – Congress gave the hemp industry one more month. It did not give it a way out.
The federal rewrite of what counts as legal hemp, passed in November 2025, now takes effect in two stages.
Products made with synthetic cannabinoids lose their hemp status Nov. 12. The new total-THC standard and a 0.4-milligram-per-container cap, which together cover most hemp-derived THC products on store shelves, take effect Dec. 11.
Once those dates pass, products that fall outside the new definition are no longer hemp under federal law. They are classified as marijuana under the Controlled Substances Act.
What the new definition does
Since the 2018 Farm Bill, hemp has been legal if it contained no more than 0.3% delta-9 THC by dry weight. That standard counted only one form of THC, which opened the door to products made with delta-8, THCA and other cannabinoids that can produce a high while still testing as hemp. The Congressional Research Service describes this as the so-called “farm bill loophole.”
The new definition, Section 781 of the FY2026 agriculture appropriations law (P.L. 119-37), changes that in several ways:
- Total THC, not just delta-9. Hemp must contain no more than 0.3% total THC, including THCA, on a dry-weight basis.
- A per-container cap. Finished hemp-derived cannabinoid products may contain no more than 0.4 milligrams of total THC and similar cannabinoids per container, meaning the innermost package sold at retail. A typical 10-milligram THC seltzer holds 25 times that.
- No synthetics. Cannabinoids that can’t be produced naturally by the plant, or that were made or converted outside the plant, are excluded regardless of dose.
- Industrial hemp is protected. Hemp grown for fiber, grain, seed oil and similar non-cannabinoid uses is explicitly included in the definition.
Ian Stewart, cochair of the cannabis law practice at the firm Wilson Elser, wrote in Insurance Journal that industry estimates put roughly 95% of hemp-derived cannabinoid products currently sold outside the new federal definition.
He also noted that many CBD products with trace THC could exceed the per-container cap, which is why some proposals in Congress seek a carve-out for non-intoxicating CBD.
How the delay happened
The law originally took effect Nov. 12, 2026, one year after it passed.
The one-month delay rode on the stopgap spending bill, H.R. 6500. The Senate passed it 90-6 on Aug. 8, and the House followed 370-48 on Sept. 1. It was signed into law Sept. 2. The delay provision was based on the bipartisan Hemp Planting Predictability Act from Sens. Amy Klobuchar, D-Minn., Rand Paul, R-Ky., and Jeff Merkley, D-Ore.
The delay came over objections from state attorneys general. In early August, South Dakota Attorney General Marty Jackley joined a coalition of 35 attorneys general urging Congress to keep the original date.
Rapid City’s Hemp Crackdown Was Already Underway. Now It’s Part of a National Fight.
Where South Dakota stands
South Dakota moved ahead of Congress. House Bill 1125, passed in 2024, bars anyone from chemically modifying or converting hemp, or converting CBD, into delta-8, delta-9, delta-10 or other forms of THC. It also bans selling hemp products that contain chemically derived or converted cannabinoids.
The federal change reaches further than the state law. Its per-container cap applies to naturally derived THC as well, covering products such as gummies and drinks that South Dakota’s law did not target.
South Dakota’s licensed medical cannabis program is regulated separately under state law and is not governed by the federal hemp definition.
What retailers are facing
Stewart wrote that inventory that is legal the day before the deadline becomes a controlled substance the day after.
That raises questions for insurance coverage, leases, supplier contracts and loans secured by inventory.
Businesses that keep selling products now classified as marijuana could also face Section 280E of the federal tax code, which bars most ordinary business deductions.
Attorneys at Vicente LLP, a cannabis and hemp law firm, describe three paths for operators:
Reformulate products to meet the 0.4-milligram cap
Move into licensed cannabis channels where state law allows
Wind down before the deadline
Could it change again?
Possibly, but nothing is moving yet.
Congress is out campaigning ahead of the Nov. 3 election and returns afterward for a lame-duck session. Vicente’s attorneys note that another stopgap spending bill is due in December, which would offer another vehicle for a delay.
Several bills are pending. Some would push the effective date back two more years (H.R. 7024, H.R. 7010 and S. 3686).
One would repeal the change outright (H.R. 6209). Others would replace it with a federal regulatory framework or raise the THC limit, including Rep. Andy Barr’s Lawful Hemp Protection Act.
None has advanced out of committee. The House-passed FY2027 agriculture spending bill does not include a delay.
One piece of the law is still unfinished. It required the Food and Drug Administration to publish, within 90 days, lists of which cannabinoids occur naturally in the plant and which have THC-like effects. As of Sept. 28, the Congressional Research Service reported the FDA had not published them.
At a glance
- Nov. 12, 2026: Products containing synthetic or lab-converted cannabinoids (such as most delta-8, HHC and THC-O) lose federal hemp status.
- Dec. 10, 2026: Last day before the new THC limits apply.
- Dec. 11, 2026: Total-THC standard and 0.4-milligram-per-container cap take effect.
- Not affected: Industrial hemp for fiber, grain and seed; South Dakota’s licensed medical cannabis program.
Still unanswered
- How will the Attorney General’s office and local law enforcement approach enforcement of products that become federally classified as marijuana on Dec. 11?
- How many Rapid City retailers carry products that will fall outside the new definition, and what happens to their remaining inventory?
- Will the FDA publish its required cannabinoid lists before the deadline, and will enforcement wait for them?
- Will the lame-duck Congress attach another delay to December’s spending bill?
Sourcing
Congressional Research Service report “Changes to the Statutory Definition of Hemp and Implications for Agricultural Policy” (IF13136, updated Sept. 28, 2026); Vicente LLP’s Oct. 13, 2026, federal hemp update; Ian Stewart’s Oct. 19, 2026, analysis in Insurance Journal; and the text of South Dakota House Bill 1125 (2024) from the South Dakota Legislature.
Leave a Reply