US Hemp Industry in Limbo

FDA Deadline for Cannabinoid Definitions Arrives.

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The Food and Drug Administration’s 90-day deadline to clarify which cannabinoids will be banned under the incoming, controversial intoxicating hemp ban falls today.

With little in the way of detail offered by the Federal Government since the ban was passed in November 2025, the US intoxicating hemp industry, thought to be worth tens-of-billions of dollars, is currently in the dark about the future legality of its operations.

As the sweeping ban set to come into force in November 2026, the FDA was tasked with publishing lists clarifying what will be classed as naturally occurring cannabinoids, THC-class compounds, and substances with THC-like effects.

Yet even as the deadline passes without clarity, Congress began advancing competing alternatives: bipartisan legislation to delay the ban (2028), and a separate regulatory framework that would replace prohibition with age-restricted controls and potency limits.

Deadline for clarification

Alongside the identification of the three new categories, the FDA was also tasked with defining ‘container’ size, given that the new regulations would cap total-THC at 0.4mg per container.

Industry stakeholders raised particular concerns about how the container definition will interact with the ban on ‘intermediate hemp-derived cannabinoid products.’

As cannabis industry analyst Deb Tharp told Business of Cannabis previously, during extraction and refinement, almost all CBD crude and distillate routinely exceed 0.3% total THC on a weight basis, even when the final bottled product falls well below the limit.

“Those intermediate materials are now, on paper, not hemp. Which means they are treated as controlled substances once the effective date hits,” Tharp noted.

“Even if your end product is non-intoxicating CBD, the stuff in your big stainless steel tank on the way there is suddenly on the wrong side of federal law.”

The FDA’s clarification on what constitutes a ‘container’, and whether processing equipment qualifies, will determine whether legitimate CBD processors can continue operations or face treating their extraction tanks as holding controlled substances.

Enforcement questions remain unanswered

Even when the FDA clarifies the regulatory boundaries, questions have already been raised about how these new classifications will be enforced.

A Congressional Research Service analysis published in December suggested that it ‘remains unclear if and how federal law enforcement will enforce the new prohibitions,’ noting that both the FDA and the Drug Enforcement Administration (DEA) ‘may lack the resources to broadly enforce the laws prohibiting intoxicating hemp products on the market.’

The CRS report draws a direct parallel to the wider medical and recreational cannabis industry in the US, observing that despite cannabis remaining federally illegal as a Schedule I controlled substance, ‘the federal response has largely been to allow states to implement their own marijuana laws despite the fact that state-regulated activities may violate the Controlled Substances Act.’

If intoxicating hemp products persist after November 2026, they ‘could be subject to the same criminal and collateral issues as marijuana’, including banking restrictions, interstate commerce limitations, and federal prosecution exposure, though the likelihood of enforcement remains unclear.

With the US Hemp Roundtable estimating that restrictions will affect 95% of the industry, the precedent suggests federal agencies may adopt forbearance rather than pursue widespread enforcement across a massive, decentralized market.

The CRS noted that Congress ‘may choose to exercise oversight over federal enforcement priorities,’ suggesting potential political pressure on how aggressively agencies pursue violations.

Two paths forward

Despite the ongoing confusion and looming crackdown, bipartisan efforts are building to amend or further delay the hemp ban. Right now, these are split into two distinct strategies.

The Hemp Planting Predictability Act, introduced by Senators Amy Klobuchar (D-MN), Rand Paul (R-KY), and Jeff Merkley (D-OR) alongside House sponsors including James Comer (R-KY), would simply delay the ban’s effective date by two years to November 2028.

The legislation offers no alternative regulatory framework but aims to provide farmers with time to sell their existing inventory and transition their operations.

“Hemp is the only crop that we have found, grown for cannabinoids, that can rival tobacco and even be better than tobacco right now,” Kentucky farmer Brian Furnish said at a January press conference with Comer.

Furnish, whose family has grown tobacco since the 1700s and now derives 70% of farm income from hemp, said his farmland has lost over $600,000 in value in just six weeks as buyers refuse new shipments until they clear existing inventory.

A separate approach comes from the Hemp Enforcement, Modernization, and Protection (HEMP) Act, introduced by Representatives Morgan Griffith (R-VA) and Marc Veasey (D-TX).

Rather than delaying prohibition, this legislation would establish a regulatory framework allowing intoxicating hemp products for adults 21 and older.

The bill sets default potency limits of 5mg THC per serving and 30mg per package, alongside manufacturing standards, testing requirements, and facility registration.

Hemp product makers would be prohibited from adding substances like alcohol, caffeine, or nicotine that could interact with cannabinoids.

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